Davis Merritt’s article Hidden price of nullification: forfeited rights is another example of fantasy instead of reality.

Many in the media keep repeating an inaccurate narrative about nullification.  Are they truly that ignorant of history, or they have been forced fed so much that it has evolved into pseudo reality?

Merritt spends the first three paragraphs of his article recounting the dark history of the American South during the 1950s and 1960s.  He pushes the emotional gas peddle harder (instead of the logical brake) when bringing the nostalgia of last weeks remembrance of Dr. Martin Luther King’s classic speech.  He writes:

The 50-year anniversary last week of the Rev. Martin Luther King Jr.’s “I Have a Dream” speech also marked a half-century since the idea of state nullification of federal laws had any credence at all. But the irony of that historical juxtaposition is lost on a new generation of nullification enthusiasts in state legislatures.

Interesting that Merritt conveniently forgets one of Dr. King’s most famous quotes, “One has a moral responsibility to disobey unjust laws.”  Merritt apparently has never read Thomas Jefferson who also wrote, “If a law is unjust, a man is not only right to disobey it, he is obligated to do so.”

Merritt’s next paragraph brings another one of these ubiquitous arguments that nullification critics have often made. It’s the “state legislatures are wasting time on this nullification business when they should focus on the issues that really matter” spiel.  He also claims nullification is only happening in “a few other states.” Keep in mind the AP recently reported four-fifths of the states have passed some kind of nullification legislation.

He ends the paragraph by stating the legislature’s zeal for nullification will create “collateral damage” and will deprive residents of their states their U.S. Citizenship rights.  He continued droning on (pun intended):

All but the most willfully clueless of the new nullificationists must surely know they cannot prevail against the avalanche of negative and expensive court decisions they are inviting.

No one is suggesting that states don’t have local issues to be concerned about.  However, as Jefferson stated earlier, they also have a duty to defend their residents from unconstitutional federal overreach.  Based on King’s quote, I’m sure he would support a state trying to protect their citizens if the federal government was violating individual natural rights.

Merritt also incorrectly implies that this modern nullification movement is just a few silly states, but in reality up to forty states have introduced some form of nullification bills.

When one considers the myriad of the types of nullification bills that have been introduced: hemp production, medical and recreational marijuana, gun rights, anti-NDAA, anti-TSA, anti-Drones and legal tender laws, would Merritt explain how any of these efforts deprive citizens of their rights.  Not emotion, but logic would seem to dictate that these efforts actually expands citizens’ rights.

After seven paragraphs, Merritt FINALLY (See, wasn’t kidding about the droning) gets to the heart of the issue.  He was very critical of a nullification bill that nullify all federal gun laws and make it a crime for any federal officers to enforce them.

He resorts back to the emotional appeal that these nullifiers are going back to the Constitution of the ’50s and ’60s.  He finishes the paragraph, “That was at least a small grasp on sanity that had not been present in 1865 when the “sovereign states” of the South lost a hopeless and bloody five-year war over the same issue.”

If Merritt ever bothered to study logic or U.S. History, he would know that during the ratifying conventions that even the Federalists maintained the states are SOVEREIGN.  This is why we are called the United STATES of America not the United PROVINCES of America.

He would also understand that Article I: Section 8 of the Constitution doesn’t grant the federal government to do anything about guns.  Therefore, guns are an issue for the states as the Tenth Amendment makes clear.  This concept is also reinforced by the Second Amendment.

Merritt also makes the other classic mistake where he implies that it was Southern nullification that led to the Civil War.  If he ever read the secession declarations by the southern states, he would have learned that is was northern nullification of the Fugitive Slave Act that southern state listed as a reason to secede.

Merritt is harshly critical of Rep. T.J. McKenna, a Democrat who voted because of his constituents’ will.  Merritt argues that he shouldn’t have because they were “mistaken.”

Surprisingly, Merritt continues saying that legislators do have a duty to respect the views of those who elected them, but they also have a duty to uphold the oaths the swore to uphold.  Merritt actually makes a great point here, but we will learn it was in the wrong context.

He finishes the article with his main thesis.  Merritt believes that if states are allowed to impede federal officers from carrying out federal law then those citizens will have their rights denied under the Equal Protection Clause.

Say What????

Merritt COULD make that argument IF federal laws are constitutional.  In this whole article, Merritt avoids the heart of his own case by not addressing how the citizens of his state are having their rights deprived?

Yes, he can point to the deep south of the ’50s and ’60s and make the case of how rights are being deprived then.  He is on safe ground.  He fails to see in this modern case that its those federal officials are the ones depriving his fellow citizen’s rights not the legislators.

Merritt is right that the legislators have sworn an Oath to their constitutions.  Again, based on original intent, federal gun laws are unconstitutional.  Does Merritt just expect his officials just follow what the Supreme Court says? Remember, the Supreme Court also once said that blacks didn’t have rights.  As Jefferson and King pointed out, his legislators have a duty to reject unjust laws.

Merritt fails to understand that everyone has the moral right to fight laws they believe are unjust.  Will there be disagreements on what is actually unjust or not?  Of course! This is why everyone has a responsibility in this as Jefferson and King argued – not just the black robed figures in Washington DC.

One can assume by his article, if federal officers showed up at Merritt’s home, arrested him under the NDAA and labelled him a terrorist that somehow the citizens of his state are being protected.  His county sheriff should just step to the side ignoring both his own oath to the Constitution and Jefferson/King’s advice and just allow this to happen.  Therefore his fellow citizen’s equal protection rights are being denied if Kansas passed a nullification law that would have protected him.  Go figure!

The 10th Amendment

“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.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.