The Remedy They Fear

The author of Federalism for 2026: Why the states are pushing back, Jakob Fay at Convention of States Action, opens with a truth and spends the rest of his essay running from it. The Founders, he concedes, built a “robust, hyperactive system of checks and balances” in which the states stand guard against Washington. Then, having admitted that the states are sentinels, he takes away their weapons and hands them a filing fee.

That is the whole of his argument. The states may resist federal usurpation, but only by asking a federal court for permission. They may defend the Constitution, but only on terms set by the government that is violating it. They may raise the “Come and Take It” flag, but only after a clerk has stamped the complaint and assigned it a docket number.

This is not federalism. It is supplication in a 10th Amendment costume. Fay names the John Birch Society as his opponent. We accept the designation. And we answer him on the record, where his case does not survive first contact.

States Have Powers. People Have Rights.

Begin with vocabulary, because sloppy words make sloppy law. Fay speaks throughout of “states’ rights.” The Constitution does not. States do not have “rights.” People have rights. States have powers, delegated by the people exactly as the federal government’s are. The 10th Amendment says so in 28 words: The powers not delegated to the United States, nor prohibited to the states, “are reserved to the States respectively, or to the people.”

The distinction is not pedantry. Both governments are agents of a single principal. An agent who exceeds his commission acts without authority, and his act binds no one. Every first-year law student learns the rule in agency. Every Founder knew it as the first principle of constitutional government.

Fay’s own witness concedes the point. He quotes Barry Goldwater approvingly: When a state asserts its power against individual rights “protected by valid federal laws,” the state’s act “is a nullity.” Read that again. Goldwater did not call the act regrettable, or actionable, or subject to review. He called it a nullity. And he extended federal protection only to valid federal laws. The converse follows with iron necessity: An invalid federal law is likewise a nullity. Fay has printed the premise of nullification in his own essay, marked it “emphasis added,” and failed to notice what it means.

The Smear and the Record

Next comes the guilt by association. Nullification is filed alongside secession and Jim Crow, as though the doctrine had only ever served the slaveholder. The record says otherwise, and the record is not ambiguous.

When Congress passed the Fugitive Slave Act of 1850, the Northern states did not file amicus briefs. They nullified. State after state enacted personal liberty laws forbidding their officers and their jails to serve the slave catcher. The Wisconsin Supreme Court declared the act unconstitutional and freed the abolitionist Sherman Booth from federal custody. When the Supreme Court of the United States reversed in Ableman v. Booth (1859), the Wisconsin legislature answered in the very language of the Kentucky Resolutions:

The several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.

And who complained loudest about this defiance? The secessionists. South Carolina’s Declaration of the Immediate Causes, adopted in December 1860, indicts the Northern states precisely for refusing to enforce federal law, charging that 14 of them had “deliberately refused for years past to fulfil their constitutional obligations.” The men who broke the Union did not hold nullification as their creed. They held it as their grievance. The slave power loved a strong central government, so long as that government chased runaways. It was the free states that interposed.

A doctrine is not condemned because wicked men have misused it. By that standard, we would have abolished the Supreme Court in 1857.

Witnesses for the Prosecution, Testifying for the Defense

Fay summons Lincoln and Jackson. He should have read their testimony first.

Lincoln’s line about a government “too weak to maintain its own existence” comes from his message to Congress of July 4, 1861. It was not a ruling on nullification. It was the second half of a question, and Fay omitted the first half: “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” Lincoln posed a dilemma. Fay quotes one horn and pretends the other does not exist. Every argument for state resistance lives on the horn he left out.

Worse for Fay, both witnesses repudiated the doctrine on which his entire alternative rests: that the federal courts are the final arbiters of the Constitution. Here is Jackson, vetoing the recharter of the Second Bank of the United States in 1832, years after the Supreme Court had blessed that Bank in McCulloch v. Maryland:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others…. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.

And here is Lincoln, in his First Inaugural:

If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Fay called upon Jackson and Lincoln to prove that the states must carry their grievances to court. On the record, both men deny that the court’s word is final. As for Calhoun’s “failed weapon,” South Carolina rescinded its ordinance only after Henry Clay’s Compromise Tariff of 1833 had cut the rates. Whatever one makes of Calhoun’s theory, the tariff came down.

Madison Spoke Before He Was Quoted

Fay enlists Madison against nullification with a phrase from Madison’s old age, and he cannot even copy it correctly. Madison wrote “a more fatal inlet to anarchy” in his Notes on Nullification of the mid-1830s, and he aimed it squarely at Calhoun’s single-state veto. But Madison spoke on this question in 1798, and he spoke as the author of the Virginia Resolutions:

In case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Mark those words: Right. Duty. Interpose. Arresting. Not “petition.” Not “seek declaratory relief.” In his Report of 1800, Madison confronted directly the claim that the judiciary settles every constitutional question. The courts decide in the last resort, he wrote, only as against the other departments of the government:

This resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.

Yes, the aged Madison opposed Calhoun. What he rejected was Calhoun’s peculiar machinery: a single state, by convention, suspending a federal law inside the Union until three-fourths of its sister states overruled it. He never retracted the duty to interpose against palpable usurpation, and he defended the Virginia Resolutions to the end of his life. To quote Madison against Calhoun is fair. To quote Madison against Madison is malpractice.

Nor was interposition an afterthought. It was a selling point. In The Federalist, No. 46, Madison assured anxious New Yorkers that an “unwarrantable measure” of the new government would meet resistance from the states, and he described the means:

The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

Refusal to cooperate; legislative devices; obstruction: That is the remedy Madison promised in exchange for ratification. He did not mention lawsuits.

Void Means Void

The author calls nullification “extralegal.” Then so is the Supremacy Clause. It makes supreme only “the Laws of the United States which shall be made in Pursuance thereof.” A law not made in pursuance of the Constitution is not supreme, and the clause says so on its face. Hamilton, no friend of state power, put it plainly in The Federalist, No. 78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.

And in The Federalist, No. 33, he told us what to do with such acts:

Acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies … will be merely acts of usurpation, and will deserve to be treated as such.

Nullification invents no power; it recognizes a fact. A void act is void on the day it passes. The judge who strikes it down does not make it unconstitutional; he discovers that it always was. And if the act is void from birth, the officers of a sovereign state owe it nothing while they wait a decade for a federal judge to agree.

The Referee on the Federal Payroll

Here Fay’s alternative collapses under its own weight. He would have the states resist Washington by suing Washington, in Washington’s courts, before judges nominated by Washington’s president, confirmed by Washington’s Senate, and paid from Washington’s Treasury. Madison answered that arrangement in The Federalist, No. 10:

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.

Jefferson applied the principle to the federal government itself in the Kentucky Resolutions of 1798:

The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers.

That is Fay’s scheme, precisely. Who guards the guardians? Under his plan, the guardians.

And consider the guardians’ record. In Wickard v. Filburn (1942), the federal courts discovered that the commerce power reaches wheat a farmer grew to feed his own animals. In Gonzales v. Raich (2005), they extended it to a plant a sick woman grew in her own backyard. In NFIB v. Sebelius (2012), 26 states sued over the individual mandate and lost the central question when the Court rewrote a penalty into a tax. A tribunal that has blessed nearly every expansion of federal power for the better part of a century is not a neutral referee. It is a member of the other team wearing a striped shirt.

The Trophy That Proves the Opposite

Fay’s showpiece is Biden v. Nebraska (2023). Examine it.

First, standing. Fay tells us that a state must show a “quasi-sovereign” interest, and implies that Missouri did. The Court said no such thing. Once it found a pocketbook injury, it declined even to consider the States’ other theories of standing. And a sovereign grievance, standing alone, is precisely what the Court has long refused to hear. A century ago, in Massachusetts v. Mellon (1923), it dismissed a state’s 10th Amendment challenge to a federal program as raising “abstract questions of political power, of sovereignty, of government,” and held that a state may not shield its citizens from a federal statute, because in that field “it is the United States, and not the State, which represents them as parens patriae.” Missouri got through the courthouse door not because the Constitution had been violated, and not because the 10th Amendment had been trampled, but because a state-created loan servicer stood to lose roughly $44 million a year in fees. The injury that counted was a ledger entry. The Court’s own phrase, which Fay quotes, was “direct injury to Missouri itself.” That is a pocketbook, not a principle.

Second, the merits. Biden v. Nebraska was not decided on the 10th Amendment. It was decided on the HEROES Act. The Court held that a federal statute did not authorize a federal secretary to cancel the debt. Federalism did not win; statutory interpretation won. Congress could have authorized the cancellation the following week, and the states would have had nothing left to argue. A victory that Congress can erase with a single bill is a reprieve, not a restoration.

So Fay’s leading example proves this: The federal courts will hear a state when it has money on the line, and will decide whether a federal agency read a federal statute correctly. Whether the federal government possesses the power at all never came up. That is the only question that matters, and it is the question nullification asks.

What Actually Works

Ironically, the most potent weapon the states possess today has been confirmed by the very courts Fay venerates. In Prigg v. Pennsylvania (1842), Justice Story acknowledged that state officers could not be compelled to enforce the federal Fugitive Slave Law, and the free states promptly forbade them to. In New York v. United States (1992), Printz v. United States (1997), and Murphy v. NCAA (2018), the Court built that principle into the anti-commandeering doctrine. In Printz, it held that Washington may not “command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

That is The Federalist, No. 46 in a modern suit of clothes. And it works. After Raich, the litigants lost and the states refused anyway. Today nearly half the states permit recreational marijuana while the Controlled Substances Act sits on the federal books, largely unenforced within their borders, because Washington lacks the manpower to enforce its will without state hands. The lawsuit failed. The refusal succeeded. California Governor Gavin Newsom, whom Fay holds up as a convert to federalism, presides over a state whose sanctuary laws forbid its officers to serve federal immigration enforcement. Call it what you like, but in substance that is nullification, and Fay applauds it.

Rome understood the principle. When a magistrate overreached, the tribune of the plebs did not file a brief with the consul’s own praetor. He placed his person between the magistrate and the citizen and spoke one word: veto — “I forbid.” The constitution the old Greek historian admired endured because each of its parts could obstruct the others. Power must check power. A brief is not power; a brief is a request.

Conclusion: You Do Not Petition a Monopolist

Fay closes by urging the states to “shatter the federal monopoly once and for all.” A stirring sentiment to be sure, but one does not shatter a monopoly by asking the monopolist’s own tribunal for permission to compete. One shatters it by withdrawing cooperation, as the free states did against the slave catchers, as the marijuana states did after Raich, and as Madison promised the states would do whenever Washington overstepped.

The Founders did not give us a Constitution that depends on the good will of the government it restrains. They gave us one that depends on the vigilance of the states and the people who created it. The states are not plaintiffs begging for relief. They are parties to the compact. It is time they acted like it.