State nullification is a term you will be hearing more and more often in the coming years. It is taking place all across the nation as states fight to take back power from the Leviathan-like federal government of the United States.
Simply put, a vast majority of Americans believe the federal government is out of control. Activities like NSA spying, the use of drones, the passing of the NDAA, illegal search and seizures, and overall flagrant disregard for the rights and will of the people have forced the hand of individuals and states. The people are taking a stand, and state nullification appears to be the key to success.
Over the years the Fed has been placing greater emphasis on its own will rather than the will of the people. The Fed has actually gone so far as to throw away the writ of habeaus corpus whenever it sees fit under the Patriot Act and NDAA. There are various solutions to the power struggle that individuals and groups have experimented with. Some people choose to protest, some revolt, while others choose to cast their vote and hope for the best. All of these methods have wildly mixed results.
State nullification, however, is an historically effective tool used by of one of the fastest growing movements in America. This movement has been wining major battles with the Fed for years, and there is no sign that state nullification will stop working as a viable solution in the near future. The movement I’m referring to is the Tenther Movement.
The Tenther Movement
The Tenther Movement, also called the State Sovereignty Movement or Tenth Amendment movement, is spreading like wildfire. It is founded on a political ideology which posits that the federal government is acting unconstitutionally, and that it is the states’ obligation to stand against an unconstitutional federal government. It is a state-wide refusal of what is considered flagrant disregard for constitutional law on the part of the federal government. Most importantly, refusal is taken a step further with federal laws overturned through state nullification.
According to the supremacy clause of the Constitution no state is allowed to create a law that is in direct conflict with a federal law. Incredibly, despite the legal reality of the supremacy clause, state nullification has worked in the past, and continues to work today. The numbers are staggering, with some reports showing that 80% of states have at least one law in direct opposition to a federal law.
The Tenther movement was inaccurately named after the tenth amendment to the Constitution, which states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This is a misnomer however since the implied validity of state nullification goes beyond just the wordage of the Constitution to the very words spoken during various constitutional conventions. In fact, supporters of state nullification have attempted to shed the name “Tenther” because it was created as a pejorative by those opposing their ideals. The name, however, has stuck.
If state nullification is so popular, why have you never heard of it? Actually, you have heard of it, you probably just didn’t realize it was a collective movement. In truth, any state victory against the Fed is associated with the Tenther Movement in some way. Check out this list of instances where state nullification is either being considered, currently being passed, or has already been used to trump federal law in a wide array of states:
As you can see, there is a great deal of successful, and ongoing state nullification taking place in the United States. Taken as a single instance state nullification may not mean much. Taken collectively, however, state nullification represents a powerful, growing trend in practicing state sovereignty. Every time a state stands up to what it perceives as the Fed overstepping its boundaries all other states benefit. State victories set national precedents. Consider, it wasn’t until cannabis was recreationally legalized in Washington and Colorado that hemp became legal at the federal level for 10 different states that are ready to grow it.
How are states getting away with this, and do their actions stand a fighting chance in a court of law?
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Is State Nullification Constitutional?
According to legal scholars, the Constitution, along with various court rulings, make it clear that the federal government reigns supreme. If a state’s activities or laws impede the federal government in any way, the state is legally bound to change in accordance with the federal government. The supremacy clause is clear about one thing: the game is rigged. No matter what, the Fed wins.
Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law explains that,
the law is clear — the supremacy clause says specifically that the federal laws are supreme over contrary state laws, even if the state doesn’t like those laws.
As we learned above though, the world of law and the real world are very different places. Somehow, the Fed is losing. Its prohibitions and decrees are being overturned by states all across the country.
One of the most outspoken voices supporting state nullification is a man named Tom Woods. Woods is being featured in the mainstream media and invited to legal seminars across the nation. Everyone wants to know the same thing: What makes proponents of state nullification think they have a leg to stand on in a court of law?
Let’s take a look at the wording of the supremacy clause . It reads:
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.
According to Woods and other state nullification supporters, the key to their movement is the bolded text, “which shall be made in Pursuance thereof.” According to Brion McClanahan, Ph.D. in American History from the University of South Carolina and a faculty member at Tom Woods’ Liberty Classroom,
All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.
Thus, anything not clearly outlined in the Constitution does not fall under the supremacy clause. There is nothing about healthcare, cannabis, or the NSA in the Constitution, thus, according to state nullification supporters, these issues fall under the tenth amendment: state enumeration.
Concerns regarding the federal power granted by the supremacy clause are nothing new. Debates over the clause date back to the Constitutional Convention held on May 31, 1787, when Edmund Randolph presented the Virginia Plan. The plan granted the federal government the power to “negative,” or shred any extant state law if it deemed a state was “incompetent.” Pierce Butler along with other representatives from South Carolina stressed that this plan was too vague and stripped the states of too much power. In the end, the idea of a federal “negative” power was voted down.
In subsequent Constitutional and ratifying conventions the supremacy clause was continuously debated. In response to attacks made on the supremacy clause, William Davie, a delegate to the Constitutional Convention from North Carolina and supporter of the Constitution explained to those against the supremacy clause that,
This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations.
In plain English, the supremacy clause ONLY pertains to those powers clearly granted by the Constitution. Furthermore, Supreme Court justice James Iredell of North Carolina argued that the supremacy clause,
is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles. If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution.
According to Tenthers the words of both the supremacy clause as well as those of our founding fathers make it clear that federal power is limited to those powers outlined in the Constitution only. State nullification likely wouldn’t hold up in a contemporary court of law, yet it appears to be completely in accordance with the words of the Constitution.
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Tenther Philosophy: Argument for State Nullification
What we have here is a clash of semantics and philosophy dating back centuries. The founding fathers, as well as contemporary interpretations of the Constitution, are all locked in a Locke vs. Hobbes fight: John Locke’s idea of a fully self-governed society vs. Thomas Hobbes idea of an all-powerful leviathan government. Has the Fed turned into Hobbe’s Leviathan? According to Tenthers, absolutely.
Woods reminds us that both Thomas Jefferson and James Madison warned of an out of control central government, and prescribed state nullification as the proper weapon to fight against a leviathan government. Woods explains why we need state nullification:
As Jefferson warned, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones. If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. In his Report of 1800, Madison reminded Virginians and Americans at large that the judicial branch was not infallible, and that some remedy must be found for those cases in which all three branches of the federal government exceed their constitutional limits.
Woods sums up the basis of Tenther philosophy using the following three points:
1. The states preceded the union. The Declaration of Independence speaks of free and independent states. The ratification of the Constitution was accomplished not by a single national vote, but by the individual ratification of various states.
2. The American system appoints no government as sovereign. The people of each state are sovereigns, and they apportion power between themselves, their state governments, and the federal government. This apportioning is a sovereign exercise, not an impairment to sovereignty.
3. Since the people of each state are sovereign, they themselves are the proper disputants when the federal government acts unconstitutionally. The people of the state are responsible for reviewing whether their agent (the federal government) was intended to exercise such powers in question. The sovereigns must retain the power to restrain the agent they themselves created.
If the sovereign power of the people cannot be retained, a leviathan inevitably grows, resulting in the loss of civil liberties and rights. This is precisely the reason the government is allowed to continue violating the rights of the American people on a daily basis.
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What if State Nullification Passes Segregation or Slave Laws?
This is the most common issue raised by scholars when discussing the validity and constitutional safety of state nullification. For obvious reasons, it is an extremely valid point.
Woods uses history as his defense. According to Woods, state nullification has never been used in support of slavery. State nullification was instead used against slavery. Wisconsin nullified the Fugitive Slave Act of 1850 and safely transported a runaway slave to Canada. While the Wisconsin nullification is true, the full breadth of Woods assertion is not.
When Brown V. Board of Education passed in 1954, several states attempted to use state nullification to claim that the supreme court decision held no legal ground in defiance of state laws. All nine justices signed an opinion stating that the states were the ones in defiance of constitutional law.
In the 1958 case of Cooper V. Aaron, in response to Arkansas attempting to keep schools segregated using state nullification, the Supreme Court stated that the Brown V. Board of Education decision,
can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously’.
The supreme court put a seeming halt to the state nullification debate when it stated in the case of Bush V. Orleans Parish School Board that,
The conclusion is clear that [nullification] is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority. Otherwise, ‘it amounted to no more than a protest, an escape valve through which the legislators blew off steam to relieve their tensions.’ . . . However solemn or spirited, [nullification] resolutions have no legal efficacy.
In the end, this point stands as a valid argument against state nullification. History however stands to show that state nullification has only been successful in defiance of slavery, not in defense.
The Supreme Court explains clearly that state nullification is a bunch of baloney, but according to the Constitution, state nullification is perfectly valid. The Supreme Court claims that the federal government is the supreme law of the land in all matters it deems constitutional, but the Constitution limits the Feds power to only that which is outlined in the Constitution. What’s going on here?
Nobody’s Right, and Everyone’s Wrong
The Supreme Court doesn’t believe that state nullification holds any legal backing. The words of America’s founding fathers, specific words used in the supremacy clause, and the sovereignty of the individual claim otherwise. Who’s right? I don’t know that there is a clear answer.
The point is that the Tenther Movement, whether good or bad, is proof that states have the power, if not the right, to self govern themselves. For whatever reason, state nullification is working, and is proving to be an effective method in creating change in the current “Leviathan” federal government.
Did all hell break loose in Colorado when cannabis was recreationally legalized? No, because everyone who is getting high now was already getting high before pot was legalized. The only visible difference this act of state nullification has made is the amount of money and business flowing into each state. Colorado and Washington hit the jackpot. Another great upside to the current state nullification craze is lower suicide rates in states that have legalized medical marijuana. If this movement is saving lives, maybe it’s worth a look?
Even though the Tenther Movement is taking place on a state level, it is people like you who ensure the snowball of change begins rolling at the local level. If the Tenther Movement has shown us anything it is that we the people are not powerless. If the federal government is out of control, it is the peoples’ duty to ensure that reasonable order is restored. Alone we can do nothing, but together, we the people have power.
Head to the Tenth Amendment Center to get up to date information about state nullification taking place in each state. The site also offers resources to help you get started on leading your own state in the process of state nullification.
“Be the change that you wish to see in the world.” – Mahatma Gandhi