Rhode Island’s Nullification

Rhode Island’s Nullification

Thomas Allen

Recently, Rhode Island enacted a law prohibiting US Immigration and Customs Enforcement (ICE) agents from operating near polling places in Rhode Island. Naturally, many people strongly object to this Rhode Island law. Some even urge the arrest of the legislators who voted for the law, the governor who signed the bill into law, and any State and local official who attempts to enforce it.

Unfortunately, Rhode Island enacted this law not because it thought ICE was acting unconstitutionally in enforcing the immigration laws. Likely, it enacted the law as a protest against President Trump. Nevertheless, regardless of its motivation, does Rhode Island have the right to nullify a federal law and its enforcement?  Under the Constitution that the Founding Fathers gave the country, the answer is “yes.” (Nowhere does the Constitution deny this right to the States, and therefore the Tenth Amendment reserves it for the States. Also, Article IV, Section 4 guarantees this right.) However, under the Constitution that Lincoln gave the country, the current Constitution, the answer is “no.” (States  have only those rights that the federal government condescends to allow them.)

Whether a State can nullify a federal law within that State depends on whether a State is sovereign. If a State is sovereign, it has the right to decide for itself whether its agent (the federal government) is complying with the compact (the US Constitution) of which it is a member. Consequently, Rhode Island has the right to determine the constitutional limits of the federal government's enforcement of immigration laws. If a State finds that the federal government is acting unconstitutionally, it not only has the right, but also the duty, to nullify or otherwise intervene to prevent such unconstitutional acts or actions. At least this is true if sovereignty resides in “we the people” of each State independently of all other States, as Jefferson and nearly all the other founding fathers claimed. However, if, like Lincoln, the opponents of Rhode Island’s interposition believe that a State does not have this right, then the States are not sovereign, and sovereignty resides in the oligarchs who control the federal government. Like Lincoln, they seem to believe that States have only those rights that the federal government condescends to grant them. (The Lincoln Constitution reduces the States to administrative districts of the federal government. [Lincoln’s War was not a war between the States; it was a war  against the States.])

(Vermont nullified a federal law that was clearly constitutional merely because it disliked the law. Not only did it nullify the law, but it also authorized the arrest and jailing of any federal agent trying to enforce it. [See “Nullification and Fugitive Slave Laws” by Thomas Allen.] However, Vermont was acting under the Constitution of the Founding Fathers and not the Constitution of Lincoln [For the differences between the two, see “What Is Your View of the US Constitution?” by Thomas Allen.])

Opponents of nullification argue that federal courts should resolve the issues between a State and the federal government. However, this is an extremely poor solution. Being part of the federal government, federal courts are not impartial arbitrators between the States (the creator) and the federal government (the creation of the States). (See “Analysis of When State Resistance Meets the Constitution” by Thomas Allen.)

If a State lacks the right to nullify a federal law, it is not sovereign. If it is not sovereign, it does not have a republican form of government, although it may have a governmental structure that appears to be republican. Only a sovereign can have a republican form of government. Only a sovereign can be a republic. Therefore, a State must be sovereign to have a republican form of government.

Furthermore, Article IV, Section 4 of the Constitution guarantees that each State has a republican form of government. Thus, if a State lacks sovereignty, the Constitution is being violated. (See “Returning Republican Governments to the States” and “Republican Form of Government” by Thomas Allen.)

Would the people who oppose Rhode Island enacting a law that interferes with the enforcement of the federal immigration law also oppose a State interfering with the enforcement of a federal law that they despise and urge the arrest of State officials for enacting and enforcing such a law? They would if they are consistent and believe, as Lincoln did, that the United States is a consolidated national empire instead of a federation of sovereign nations, as nearly all, if not all, of the Founding Fathers thought. (See “False States’ Rights” by Thomas Allen.)

Personally, I disagree with Rhode Island on this immigration issue and believe that federal agents have the right to apprehend illegal immigrants at polling places. However, that is an issue for “we the people” of Rhode Island, as represented by their legislature in this instance, to decide, and not for me, the federal government, or anyone else to decide.

(For more about States' rights, nullification, and the Constitution, go to https://tcallenco.weebly.com/political.html.)

Copyright © 2026 by Thomas Coley Allen.

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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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False States’ Rights

False States’ Rights

Thomas Allen

During the Clinton and Obama administrations, left-wingers wanted State officials to enforce federal anti-gun laws — even using force if necessary to coerce the States to enforce federal laws when bribery (federal grants) and extortion (withholding federal grants) failed. On the other hand, right-wingers strongly objected to States enforcing federal gun-control laws and claimed that States were not obliged to enforce federal laws. The Supreme Court agreed with the right-wingers.

Now, the left-wingers and right-wingers have switched positions. Under the Trump administration, right-wingers want State and, by extension, local officials to enforce federal immigration laws or at least be required to aid federal officials in enforcing federal immigration laws. They approve of the federal government using bribery or extortion to reward or punish States for enforcing and aiding in the enforcement of federal laws. Left-wingers object and assert that State and local officials do not have to enforce or aid in the enforcement of federal immigration laws.

Although both sides give lip service to States’ rights, neither believes in nor supports States’ rights. Both reject the notion that the United States is a federation of independent sovereign republican States. Both support the notion that the United States is a consolidated national empire with the States serving as administrative districts.

If they believed in and supported States’ rights, they would support States refusing to enforce federal laws, regardless of the law. Moreover, they would object to coercing States to enforce federal laws, even with bribery or extortion. (Extortion, i.e., withholding federal grants if a State fails to enforce a federal law, is a favorite weapon to compel a State to enforce a federal law.) 

Moreover, if they believed in States’ rights, they would support the right of “we the people” of each State to declare through their legislature or special convention, whether a federal law is constitutional. If a State (“we the people”) finds that a federal law is unconstitutional, it could and should nullify that law and make it unenforceable in that State and even jail federal agents who tried to enforce the nullified law. (Governors and city and county officials do not have the right to nullify federal laws; however, they may refuse to enforce or aid in the enforcement of federal laws unless a State law requires them to enforce or aid in the enforcement of federal laws.)

People who oppose a State’s right to nullify a federal law that they support oppose States having a republican form of government as guaranteed under the Constitution.[1] (see “Returning Republican Governments to the States” by Thomas Allen). Moreover, they oppose sovereignty residing in “we the people” of each State. Consequently, they support sovereignty residing in the oligarchs who control the federal government.

Endnote

1.  As explained in “Returning Republican Governments to the States,” for a State to have a republican form of government, it has to have the right to decide for itself whether a federal law is constitutional or unconstitutional. If it finds that a federal law is unconstitutional, it has not only the right but also the duty to nullify that law and make it unenforceable in that State.

Copyright © 2026 by Thomas Coley Allen.

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Confusion About the Constitution

Confusion About the Constitution

Thomas Allen

Many people believe that we live under the Constitution ratified in 1788. We do not. We are living under the Constitution that Lincoln gave us, further developed by Presidents Wilson and Franklin Roosevelt, and carried to fruition by the Warren Court. Although the words may be the same, their meaning has significantly changed. Lincoln’s War and the Fourteenth Amendment fundamentally altered the country and its government. (For a description of some of these fundamental changes, see “What Is Your View of the US Constitution?” and “Before and After” by Thomas Allen.)

Before Lincoln’s War and the Fourteenth Amendment, the States were independent sovereign republics. Also, before the Fourteenth Amendment, the United States were a monoracial country (see “The Constitution of 1788 Was Only for White People” by Thomas Allen). After Lincoln’s War and the Fourteenth Amendment, the States lost their independence, sovereignty, and republican form of government, and became little more than administrative districts in a consolidated multiracial national empire. (Stripping the States of their republican form of government violates the Constitution of 1788, but not Lincoln’s Constitution. For a State to have a republican form of government, it has to have the right to decide for itself whether a federal law is constitutional or unconstitutional. If it finds that a federal law is unconstitutional, it has not only the right but also the duty to nullify that law and make it unenforceable in that State. This right is denied them under Lincoln’s Constitution. [See “Returning Republican Governments to the States” by Thomas Allen.]) Furthermore, Lincoln’s War and the Fourteenth Amendment transferred the sovereignty of “we the people” of each State to the oligarchs who controlled the federal government.

Moreover, under the Constitution of 1788, Congress was the strongest of the three branches of the federal government, and the judiciary was the weakest. Under today’s Lincoln’s Constitution, the country has a kritarchy with an imperial president and an impotent Congress.

Additionally, under the Constitution of 1788, the federal government was strictly limited to a few delegated powers. All other powers remained with the States. Under today’s Constitution, the federal government has almost unlimited powers, while the powers of the States are only those allowed by the federal government.

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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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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Nullification and Interposition – Part 2

Nullification and Interposition – Part 2

Thomas Allen

The federal government is obliged to cease enforcing a nullified act in a State that has nullified it. If the federal government attempts to enforce a nullified law, such action would be like humans trying to oust their Creator, God — the created agent trying to overthrow the creator sovereign “we the people” of the nullifying State. Although the former is impossible, Lincoln accomplished the latter.

There are only three constitutional ways to overturn the nullification of a federal act. One way is to persuade the nullifying States that it is wrong, which results in the State rescinding its nullification. Second, the federal government repeals or rescinds the nullified act. The third is that the Constitution is amended to clarify that the federal government has the power that has been nullified or that the nullified power is a reserved power that the federal government should exercise.

Although Congress can call forth the militia “to execute the laws and suppress insurrection,” this power does not apply to nullification because the law does not exist in the nullifying State. Since the act of nullification has declared the law null and void, it does not exist in the nullifying State.

One argument against nullification is that the Supreme Court is the final arbitrator of the constitutionality of all federal and State acts. If the US Supreme Court is the final arbitrator, it means two things. First, the creature (the federal government) is superior to the creator (the States). Such usurpation is like man (the creature) usurping the power and authority of the creator (God). Misery and despotism are the results. Second, of the three branches of government, the Supreme Court is the superior branch. However, the Constitution makes Congress the superior branch and the federal courts the weakest. Before it emasculated itself, Congress could restrict the Supreme Court’s jurisdiction to the few items named in Article III and could deny it jurisdiction over most acts of the States. Further, Congress can strip the Supreme Court of its appellate authority. Moreover, since Congress created all inferior courts, it can abolish them. Also, Congress can and has restricted the jurisdiction of inferior courts, which includes the authority to decide the constitutionality of federal and State acts. Further, the President can follow Lincoln’s precedent and ignore the rulings of any federal court, including the Supreme Court.

Another argument that opponents of nullification use is the Supremacy Clause of the US Constitution, Article VI, Clause 2:

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.

Thus, they assert that all federal laws are the supreme law and prevail over the States, and a State cannot judge the constitutionality of a federal law. Deciding the constitutionality of a federal law is the job of federal courts.

Conversely, most founding fathers who were involved with the development and ratification of the Constitution of 1787 (most notably, Madison and Jefferson) assert that only federal laws made pursuant to the Constitution are supreme. That is, only those federal laws necessary to execute specifically delegated powers are constitutional. Any federal law that goes beyond the specifically delegated power is unconstitutional; it is not a law and, therefore, is void and of no force or effect. A State’s nullification makes a finding that a particular federal law is not made pursuant to the Constitution and is, therefore, not a law.

Who ultimately decides if a federal law is constitutional? It cannot be the Supreme Court because that would make the federal government, the creature or agent, the judge of its limits. The only logical arbitrator of the constitutionality of a federal law is “we the people,” that is, “we the people” of each State acting independently either through their legislature or a special convention. Since “we the people” of each State independently ratified the Constitution of 1787 and, consequently, formed the union created under that Constitution and its government, they should be the ultimate and final judge of the constitutionality of all federal acts.

Therefore, federal laws are supreme only if they are constitutional. An unconstitutional federal law or other federal act is null and void. Being the principals of the contract, the US Constitution, that created the federal government and delegated to it certain powers, each State, acting individually, is the final judge about whether a federal action is constitutional.

Another major argument against nullification is that the majority has the right to govern, i.e., the will of the majority must prevail — the majority of the whole or an absolute majority. As a practical matter, the will of the whole community is the will of the stronger interest. (Most people who hold this view demur when the majority turns against their favorite project.) 

There are two ways to estimate the majority. The first is a majority of the whole community in the aggregate. The second is a majority of political interests (different classes, communities, etc.) formed into one general confederated community. In the second case, the majority is a majority of the various classes or communities, with the assent of each taken separately. The concurrence of all constitutes the majority — concurrent majority. People who object to nullification because it thwarts the majority are referring to the first type of majority.

Since the Constitution came into being through a concurrent majority, an absolute majority conflicts with the Constitution. (The concurring accent of all the States formed and ratified the Constitution and not a majority of the whole in the aggregate.)

People who object to nullification assert, in effect, that the federal government has the sole right to decide the extent of its own powers and, by that, place the reserved powers of the States at its whim and mercy — thus, destroying the equilibrium of the system.

Nullification is an important but rarely used means to keep the federal government within its constitutional bounds. Without nullification, the federal government, the agent of the States that created it, will assume powers never delegated to it and expand delegated powers beyond what was intended. History proves this point. Since nullification essentially died in 1865, the federal government has exploded far beyond its constitutional bounds, and the States have shrunk to near insignificance. 

Do the States have the right to interpose and nullify federal laws? Under the Constitution that the Founding Fathers gave to the union, the answer is “yes.” According to the Founding Fathers’ Constitution, the States are independent sovereign republics, i.e., independent sovereign nations. Just as nations that enter into a treaty or compact can each independently judge adherence to that treaty or compact, so can the States independently judge adherence to the Constitution. Moreover, the States not only have the right, but they also have the duty to decide independently if the Constitution (a treaty and compact between the States) is being violated.

Under the constitution that Lincoln gave to the union, the answer is “no.” According to Lincoln’s constitution, the States are merely administrative provinces. They can only do what the federal government allows them to do. The rights of the States are mere concessions that can be revoked any time. “Might makes right” is the underlying principle of the Lincoln constitution. (For the difference between the Constitutions of the Founding Fathers and Lincoln, see “What Is Your View of the US Constitution?” by Thomas Allen) 

Even under the Constitution of the Founding Fathers, the people who controlled the federal government avariciously lusted after power and, therefore, preferred “might” to “right” and objected to a State nullifying even the most unconstitutional acts of the federal government.

Ending grants to State and local governments would be one of the best things to occur in this country. It would give the States the courage to nullify unconstitutional federal acts and to interpose to prevent their enforcement. If the cowardly States cared about protecting themselves and their citizens, they would nullify thousands of federal acts.

Afterthought. A great irony of today is that the woke politicians and other wokesters supporting nullifying federal acts of deporting illegal aliens are using, most likely unknowingly, the political philosophies of Jefferson and Calhoun. What makes their support of nullification so ironic is that they have declared Jefferson and especially Calhoun persona non grata, who should be erased from history.

For more on nullification, see the following works of John C. Calhoun:

The Disquisition on Government,

Fort Hill Address,

Important Correspondence on the Subject of State Introposition [sic], Between His Excellency Gov. Hamilton and Hon. John C. Calhoun, and 

“Against the Force Bill”

Also, see these articles:

The Kentucky Resolves of 1798

The Kentucky Resolves of 1799

Virginia General Assembly Report of 1800

Also, see these articles by Thomas Allen:

 “Calhoun and Concurrent Majority,”

“States’ Rights,”

“States’ Right and Society,”

“Jefferson and States’ Rights,”

“Calhoun and States’ Rights,” and

“More Thoughts Related to the US Constitution.”

Copyright © 2025 by Thomas Coley Allen.

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Part 1.

Nullification and Interposition – Part 1

Nullification and Interposition – Part 1

Thomas Allen

When people oppose a federal act, most of them support the right of States to interpose and nullify that act. However, they oppose the right of States to interpose and nullify a federal act when they support that act.

Would the people who object to States interposing to thwart the federal government apprehending and deporting illegal aliens have also objected to States interposing to thwart the enforcement of fugitive slave laws? Most would probably support the States interposing and nullifying fugitive slave laws. Yet, the Constitution emphatically requires returning runaway slaves, but it does not expressly require or even authorize the federal government to deport illegal aliens. (See Article IV, Section 2, Clause 3 of the Constitution.) Nevertheless, one can argue that deporting illegal immigrants is enforcing the nationalization statutes — but that is for each State to decide for itself.

If they are consistent, people who object to a State interposing to prevent the federal government from enforcing immigration laws that a State finds unconstitutional should also object to a State interposing to prevent the federal government from enforcing gun laws that it finds unconstitutional. Conversely, people who support a State interposing to prevent the federal government from enforcing gun laws that the State finds unconstitutional should also support a State interposing to prevent the federal government from enforcing immigration laws that it finds unconstitutional.

  For example, if the federal government outlawed private ownership of so-called assault rifles, most ardent Second Amendment proponents would support States nullifying that law and oppose the federal government overriding the nullification. However, if a State outlawed private ownership of assault rifles, most of these same proponents would urge the federal government to veto such a State law. If the State nullified the federal government’s veto of the State law, these same proponents would urge the federal government to override that nullification. Thus, only a few people support nullification in principle. Most support nullification if it supports their position and oppose nullification if it opposes their position.

Now, let us look at some definitions. “State” can mean either the government of a State or “we the people” of that State, who created the government of that State and are a community distinct and independent of all other States. “We the People” are not all Americans collectively forming one great community. (See “Meaning of ‘We the People’”  by Thomas Allen.) Sovereign power resides in the people of each State (“we the people”) independent of the people of the other States (“we the people” of each of the other States).

Being sovereign, a State may take three actions against an unconstitutional act of the federal government: nullification, interposition, or veto. Nullification nullifies an unconstitutional act regarding the nullifying State. Interposition is a State shielding its citizens from the federal government. Veto is the arresting or inhibiting an unconstitutional act of the federal government within the bounds of the State.

Nullification is not secession. With nullification, only the nullified federal act is unenforceable; all other federal laws remain enforceable. Confining the agent, the federal government, within the limits of its delegated powers is the objective of nullification. With secession, no federal law remains enforceable in the seceding State because the State is no longer in the union, and, therefore, it is no longer under the jurisdiction of the federal government. It is a foreign nation. Withdrawing as a member of the union relieves the seceding State of the obligations of the association, the union; that is the objective of secession. A seceding State also loses the benefits of the union. Thus, secession returns the seceding State to the relationship that it had with the other States before it joined the union. While a nullifying State remains in the union, a seceding State removes itself from the union. Secession deals with the acts of States that make remaining in the union unbearable. Nullification deals with the acts of the federal government, which is an agent of the States. Whereas secession divides the union, nullification preserves it and the Constitution.

Before the adoption of the Constitution, no State nor all the States could exercise any power over a State without that State’s consent. They were independent nations.

In the Declaration of Independence, the colonies declared themselves to be free and independent States (nations) and not a free and independent State (nation). Furthermore, the Treaty of Paris of 1783, which formally ended the American Revolutionary War, recognized the colonies as 13 independent States (nations). Also, they proposed the Constitution as independent States and ratified it as independent States. The ratifying States bound themselves to the Constitution, but they did not bind any State that had not ratified it.

When a State ratified the Constitution, it bound only its citizens and no other people. Thus, the Founding Fathers’ Constitution formed a union of States and not a union of individuals.

Since the Constitution, which the sovereign States brought into being with ratification, created a general government (the US government, federal government, or general government) as their agent, the created agent has no right to impose its construction of the Constitution on the States or any one of them. Thus, the Constitution of 1787 formed a political community of sovereign States (nations) where each State may determine for its citizens the extent of powers delegated to the federal government and those reserved to the States.

Accordingly, the Constitution of 1789 was a contract between independent sovereign republics, which created an agent, the federal government, to carry out specific and limited activities. Then, Lincoln came along and essentially voided that contract and usurped all the sovereignty and powers of the States, the parties to the contract. (Now, the States have only those powers that the federal government condescends to grant them.)

The Constitutional Convention rejected giving the federal government the power to prevent a State from opposing and preventing (interposing and nullifying) the execution of acts of the federal government. Also, it rejected authorizing the federal government the power to compel a State (its government and “we the people” of that State) to obey federal acts. Furthermore, it rejected giving the Supreme Court jurisdiction over all controversies between the United States and an individual State. Moreover, it rejected giving Congress the power to void State laws that Congress believed interfered with the interests of the union. Thus, the Constitutional Convention endorsed nullification by forbidding the federal government from enforcing its law in a State once that State objected to that law. Nowhere does the Constitution authorize the federal government to exercise any control over a State by force, veto, judicial procedure, or otherwise.

Moreover, a common and radical error that many people make is that the federal government is a national government; it is not. It is a confederate government. It is a misconception to view the federal government as a national government that can enforce its will upon the states in the United States' political system. If it were a national government, it would derive its power from a source higher than the States. However, since it derives its power from the States, i.e., “we the people” of each State, it is subordinate to “we the people” of the States, who are the sovereigns. That is, the federal government derives its power from the sovereigns. 

In its sovereign capacity, a State can decide independently for itself whether an act of the federal government is unconstitutional. If a State finds an act of the federal government unconstitutional, it has the right in its sovereign capacity to declare that unconstitutional act null and void. Moreover, the federal government has no right to enforce its notion of its powers against that of a State — the State’s notion prevails.

Nullification is based on the principle that a State has the right to defend its reserved powers from the encroachment of the federal government. Whether the Constitution has granted a particular power to the federal government, each State, as a sovereign, decides for itself. If a State finds that a particular act of the federal government exceeds its delegated authority, that act is null and void. Its citizens have no obligation to obey it. However, a State’s nullification does not affect citizens of other States.

To deny the States the right of nullification to defend their reserved powers results in the federal government deciding the extent of its powers and leads to the federal government assuming powers that the States reserved for themselves. History has proven this usurpation. In 1787, only the most radical Anti-Federalist could have imagined that the federal government would become as bloated and tyrannical as it is today.

Nullification seeks not to resist or diminish the powers of the union, but to preserve them as they are, without decreasing or increasing them. (Increasing the union’s powers can effectively destroy the union — as Lincoln proved — as diminishing them.)

Copyright © 2025 by Thomas Coley Allen.

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Part 2.

Jefferson and States’ Rights

Jefferson and States’ Rights

Thomas Allen

In Chaining Down Leviathan: The American Dream of Self-Government 1776-1865 (McClellanville, South Carolina: Abbeville Institute Press, 2021), Luigi Marco Bassani discusses Thomas Jefferson’s concept of States’ rights. The following summarizes that discussion.

Jefferson used “State” to designate the people of a State and not its government, which the people (body politic of that State) created. He advocated localism over nationalism; localism is more closely tied to liberty than is nationalism. Therefore, local interest should be superior to the national interest. Further, he supported self-government and elected officials being directly responsible and linked closely to the voters. Thus, he endorsed natural rights, limited government, and popular sovereignty.

Moreover, the government should be restricted to protecting life, liberty, and property and have a laissez-faire approach in economic matters. Consequently, he opposed the concentration and consolidation of power in a single center and, therefore, fervently opposed a strong federal government that decided the limits of its power.

States’ rights were the best and surest way to prevent the consolidation of power in the federal government. After all, the States had created the federal government as their agent to manage their common affairs, such as foreign relations. They did not create it to rule over them and to manage their internal affairs.

For Jefferson, tyranny rose from the concentration of power. States’ rights were the mechanism by which such tyranny could be prevented. Only by strictly construing the Constitution could the States be saved from being subservient to the federal government. Only when a State acting individually and independently could decide if a federal act exceeded the authority delegated to the federal government and could nullify such unconstitutional act within its territorial limits would the liberties and rights of the people be protected.

Jefferson favored a constitution that united the States concerning foreign affairs but kept the States separate and distinct in domestic concerns. Thus, the States were independent in everything within themselves but were united in everything respecting foreign countries. However, he opposed becoming entangled with other countries; therefore, he favored allowing merchants the freedom to manage their trade with foreign countries.

The Kentucky Resolutions, which Jefferson wrote, expressed the core of his concept of federalism, States’ rights, and constitutional doctrine. According to the Kentucky Resolutions, each State had the right to nullify within its own territory any federal act that if found exceeding the powers delegated to the federal government without the need of other States joining it. Thus, the Kentucky Resolutions expounded the political and judicial philosophy of Jefferson’s States’ rights.

Jefferson believed that the States were much better defenders of individual liberties than were federal courts. Consequently, he replaced the doctrine of natural rights as expounded by federal courts with the doctrine of States’ rights, which were more powerful and effective at protecting the liberties of individuals. Therefore, the States should be responsible for guarding the constitutional balance against the consolidation of power in the federal government.

As sovereign powers, the States entered into a compact to create a federal government as their agent, subordinate to the States, to carry out well-defined, limited functions. Since the States were sovereign parties that entered into the constitutional compact, the federal government, their agent, had no authority to expand its power without the agreement of the contracting parties, the States.

Consequently, Jefferson maintained that each State acting individually and independently could decide if an act of the federal government was contrary to the Constitution. If it found such an act unconstitutional, it could nullify that act within its territory.

Although Jefferson adored the Union, he valued the right of local self-government even more. Thus, he insisted that freedom and self-government could not be subordinated to the Union. Like many people before 1861, he contended that the Union was an experiment in liberty and not an end in itself. Moreover, he thought that local self-government and not the Union was the guarantor of the safety and happiness of the people.

Also, Jefferson objected to the notion that the Constitution gave the federal government implied powers as Alexander Hamilton had argued. Furthermore, the Supremacy Clause in the Constitution did not give the federal government absolute supremacy over the States. Not all federal laws are the supreme law of the land. Only those laws enacted pursuant to one of the delegated powers are supreme. Otherwise, State laws are supreme.

To Jefferson, the Union was a true federation with the federal government having a few delegated functions and powers as set out in the Constitution. Only with the consent of the States through the amendment process could it expand its power. He considered federalism as an end in itself with self-governing States being supreme over the federal government. Moreover, he rejected the notion that the Bill of Rights applied to the States and asserted that it only applied to the federal government.

Jefferson also rejected the notion that a federal common law existed. Each State had its own common law system that applied solely within its borders. However, no American common law existed.

He feared that if the federal legal system incorporate common law, Congress could expand its power by revising and integrating the principles of common law. If this were to happen, constitutional limitations on the federal government would vanish. Congress could legislate in all cases whatsoever. If common law were to limit federal legislative activity, then the judiciary would acquire legislative power. If common law became a body of law, the Constitution would cease limiting the powers of the federal government. In any event, the incorporation of American common law into the federal legal system would be disastrous for the liberties of the people and States’ rights. The Constitution and federal common law could not coexist in the American system of government.

Jefferson rejected the notion of the Supreme Court, which was part of the federal government, being the final arbitrator between a State and the federal government. If the Supreme Court were the final arbitrator, then Congress and the President, which were also part of the federal government, were being adjudicated by another part of the federal government, the Supreme Court, and not by the Constitution. If the federal government could force the States to comply with all federal laws whatsoever, whether according to the Constitution or in flagrant violation of it, then federalism would cease to exist except in name only. Consequently, the States were and ought to be the final judges of the constitutionality of federal acts. (Being part of the federal government, federal courts has no incentive to prevent the consolidation of power in the federal government. History has shown that not only do federal courts place little constraint against such consolidation, but they have often led in such consolation.)

Thus, Jefferson maintained that the authority of the Supreme Court to decide in the last resort did not extend to the rights of the States, which were parties to the constitutional compact. The States gave federal judges their delegated trusts. As original parties to the constitutional compact, each individual State was the ultimate judge of whether an act of the federal government was compatible with the Constitution. As a creation of the Constitution, the Supreme Court could not be the ultimate judge.

Since the defeat of the Confederacy, the federal government has been suppressing States’ rights and has almost extinguished them. As a result, liberty has faded and the tyranny that Jefferson feared has happened.

Copyright © 2022 by Thomas Coley Allen.

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Returning Republican Governments to the States

Returning Republican Governments

to the States

Thomas Allen

Article IV, Section 4: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Thus, the Constitution guarantees that each State has a republican form of government. Only a sovereign can have a republican form of government. Only a sovereign can be a republic. Therefore, a State must be sovereign to have a republican government. Consequently, when the federal government usurps any power that the States reserved for themselves, it usurps their sovereignty. Doing so, the federal government becomes a tyrant.

An attribute of a sovereign is that a sovereign is the final judge of whether any agreement that it has freely entered has been violated. The agreement may be called a treaty, compact, constitution, or anything else — the name of the agreement is irrelevant. 

As free and independent sovereigns, each State freely entered into the Constitution. When the sovereign States entered into the Constitution, they did not surrender their sovereignty. They merely delegated some powers to their agent, the federal government.

As a sovereign, who with the other States that created the Constitution, a State has the right to decide independently and for itself whether its agent, the federal government, has exceeded its constitutionally delegated powers. Therefore, a State has the constitutional right to nullify any federal law or act that it finds violating the Constitution. However, its decision does not bind the other States. Consequently, the nullified federal law or act would not apply in the State that has nullified it, but it remains effective in the other States. 

Moreover, since each State is the final judge of the Constitution, a State is the final judge of the constitutionality of any federal court ruling including a ruling by the Supreme Court. Accordingly, a State ought to nullify any federal court decision that goes beyond the court’s constitutional jurisdictional bounds as each State individually determines. Thus, they alone, acting in their individual capacities, should determine the extent of the jurisdiction that they have given the federal courts to bind them in any particular case.

The States did not delegate to the federal government the authority to decide the extent of its power. They retained that authority for themselves acting individually. Furthermore, since the sovereign States created the Constitution and, by that, the federal government, they alone, acting in their individual capacities, determine the nature and extent of the Constitution.

Being an agent of the sovereign States that created it, the federal government cannot legally or lawfully claim anything for itself or on its own account. To do so is tyranny.

However, with his war, Lincoln usurped and stole the sovereignty of the States. The time has come for the States to reclaim their stolen sovereignty and force the federal government back into its constitutional bounds.

(Being part of the federal government, the Supreme Court is not suited to be the final judge in a dispute between the federal government and a State. Naturally, the Supreme Court is biased toward the federal government of which it is part and against its creator the States. [Historically, the Supreme Court has vigorously transferred power from the States to the federal government while feebly protecting the States from federal usurpation.] The more power that the Supreme Court can take from the States, the more powerful it becomes. Therefore, the creators, the States, individually should be and must be the final judge in any disagreement with their creation, the federal government. Only, then will the States be able to regain and retain their sovereignty.)

How can the States and the people thereof, the bodies politic, regain their sovereignty and their liberty? First, the States have to reject all grants from the federal government. This rejection of federal grants must include grants to local governments and State universities. As long as the States remain financially dependent on the federal government, they will never have the courage to seriously object to the unconstitutional activities of the federal government. (Federal grants have been used to bribe the States in supporting all sorts of unconstitutional federal acts.) After rejecting federal grants, the States can refuse to cooperate with the federal government in activities that exceed the delegated powers under the Constitution — as determined by each State individually. Thus, the States would force the federal government to enforce its unconstitutional laws directly instead of through the States. Additionally, the States need to interpose and strongly resist all acts of the federal government that restrain commerce, that impinge on the liberties of their people, that destroy the traditions, culture, and inheritance of their people, and that exceed its constitutional authority.

Only when the States, the bodies politic thereof, take back their stolen sovereignty will the people be truly free. Only then will they be governed by a republican form of government instead of by the tyrannical, despotic federal government that now governs them.

Appendix. State Government

The sovereignty of a republican State lies in the body politic of that State; that is, it lies within that part of the people of that State who wield or possess political power. The body politic grants the government of its State the authority to exercise a part of its sovereignty. Yet, it does not lose any of its sovereignty and can redraw whatever it has granted its government. Whatever power a State government exercises, it is still the power of the body politic that created it.

A major distinction between a State constitution and the US Constitution is that in a State constitution, every power is granted to its government but those powers denied it. In the US Constitution, every power is denied that is not specifically granted.

Reference

Upshur, Abel P. A Brief Enquiry into the True Nature and Character of Our Federal Government; Being a Review of Judge Story's Commentaries on the Constitution of the United States. 1840: reprint. Philadelphia: John Campbell, Publisher, 1863.

Copyright © 2021 by Thomas Coley Allen.

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