States’ Nullification Efforts: All Bark and no Bite?

Jun. 21, 2013
by Bob Adelmann

In a dreadfully slanted and intellectually dishonest offering from Associated Press writer David Lieb on Friday, efforts by the several states to nullify unconstitutional federal laws are derided as irrelevant and the matter already settled.

So why did he write it? Perhaps that’s the underlying message: the feds are getting nervous.

He calls the possibility that a state might actually arrest a federal agent for enforcing a federal law that a state thinks is unconstitutional “farfetched” but “conceivable.” He refers to the bill about to become law in Missouri as “the most extreme example of a states’ rights movement” that supposedly was settled by the Civil War. He then goes on to note that 40 states – 40! – already have nullification laws on their books, on the use of marijuana, gun control, health insurance requirements under Obamacare, and federal identification card demands.

Lieb then calls on a liberal law professor to trot out the old “supremacy clause” ruse that explains everything: if the feds pass it, it’s constitutional. Here’s what Adam Winkler, the law professor in question, told Lieb: “The law is clear – the supremacy clause of the U.S. Constitution says specifically that the federal laws are supreme over contrary state laws, even if the state doesn’t like those laws.”

The only problem with that is that the good professor forgot, conveniently, to quote exactly and completely what the so-called supremacy clause actually says:

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, anything in the constitution or laws of any state to the contrary notwithstanding.

Constitutional scholar Tom Woods, the author of eleven books, most notably Rollback and Nullification, points out the relevant phrase that Winkler and Lieb left out: “which shall be made in pursuance thereof….” This means that laws that aren’t constitutional are unconstitutional – it’s as simple as that.

Woods’ reasoning is not only sound but comforting: the states preceded the Union, no government (state or federal) is sovereign but only the citizens, and consequently they are free to ignore laws that its creation, the national government, deems to make which they consider unconstitutional.

For justification, he relies on people who should know about the subject: people such as Thomas Jefferson and James Madison, authors of the Kentucky and Virginia Resolutions, respectively. Each declared that the states had (and have) the right and the duty to declare unconstitutional any acts of Congress that were not authorized under the Constitution. And that’s what is making Lieb and those whose views he represents nervous.

For instance, Lieb makes much of the Missouri nullification bill now sitting on the governor’s desk for signing, probably because it not only goes far beyond other similar bills in Kansas and elsewhere, but because of its underlying reasoning. As conservative lawyer Joe Wolverton points out, it is soundly based upon the principles noted by Woods, Jefferson, and Madison:

Acting through the United States Constitution, the people of the several states created the federal government to be their agent in the exercise of a few defined powers, while reserving to the state governments the power to legislate on matters which concern the lives, liberties, and properties of citizens in the ordinary course of affairs;

The limitation of the federal government’s power is affirmed under the Tenth Amendment to the United States Constitution, which defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all power not delegated to the federal government in the Constitution of the United States is reserved to the states respectively, or to the people themselves;

Whenever the federal government assumes powers that the people did not grant it in the Constitution, its acts are unauthoritative, void, and of no force;

And therefore:

All federal acts, laws, orders, rules, and regulations, whether past, present, or future, which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Article I, Section 23 of the Missouri Constitution shall be invalid in this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall be considered null and void and of no effect in this state.

That’s what makes Lieb and his editors at Associated Press nervous: if enough states push back, the feds will be forced to give it up. Remember the Real ID Act that Congress passed back in 2005? Half the states have told the feds to give it up, we’re not interested. Consequently, Janet Napolitano, head of Obama’s Department of Homeland Security, has refused to pursue the issue against the states. Marijuana laws continue to proliferate in “violation” of federal statutes, gun ownership laws protecting citizens from federal intrusions are continuing to spread across the country, and so on.

This article, in essence, is a tacit surrender to the movement towards freedom and liberty and I rejoice and am glad in it.


A graduate of Cornell University and a former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at, primarily on economics and politics. He can be reached at



Lieb’s article: Federal nullification efforts mounting in states

Tom Woods: Is Nullification Unconstitutional?

Tom Woods’s bio

Joe Wolverton: Missouri Legislature Sends Gun Grab Nullification Bill to Governor

Bio on Adam Winkler

Real ID Act

Kentucky and Virginia Resolutions

Tom Woods: State Nullification: What Is It?

The Supremacy Clause

Rollback: Repealing Big Government Before the Coming Fiscal Collapse

Nullification: How to Resist Federal Tyranny in the 21st Century

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