In an April 4, 2012 post on the Lawfare blog, Benjamin Wittes, a “Senior Fellow in Governance Studies at the Brookings Institution,” says he’s been doing his “best to ignore the hysterical, paranoid, delusional howls of rage on both the Right and Left about the NDAA, but they are starting to reach critical mass in a way that one ignores at one’s own peril.”

Wow! But that’s not all. He then goes on to attack what he seems to think is an absolutely terrible bill, HB1160, which was passed almost unanimously by the Virginia House and Senate in an effort to reject those “indefinite detention” powers within the Commonwealth of Virginia. Wittes asks, “Do any of the members who voted for it remember that the federal Constitution contains a Supremacy Clause, which elevates an act of Congress just a wee bit over any regulation of the Virginia Administrative Code?”

To quote Andy Williams in response: “Where do I begin?”

How about we start with our “scholar” Benjamin Wittes’ use of hyperbole in place of rational arguments? He uses words that are meant to relegate their objects to kooky status, and then falls back on the shopworn college sophomore terms and phrases such as “critical mass” and “ignore at one’s own peril.”  Really, Mr. Wittes? And what “peril” is that?

Let’s get to the heart of the matter: If Wittes had read the supremacy clause, he would have seen these words: “in Pursuance thereof.”

In pursuance of  what, Mr. Wittte? Unlimited government? Or is it in pursuance of the Constitution, which is pretty straightforward about federal duties and limitations? I’ll give Witte the benefit of the doubt and say he has read the Constitution, including Article VI: Debts, Supremacy, and Oaths (which are suppose to be binding, but that’s another issue).

Okay, so what happened? Why doesn’t Witte get it? I believe I have an answer: Mr. Witte is suffering from a common socio-visual malady. This malady, which claims countless victims–primarily among the legal profession and federal government workers for some odd reason–and has been increasing in detection in recent years, is called ocular in-pursuance block. This condition, which is, happily, curable, is characterized by the inability to see the words: “in pursuance thereof” in written text.

Wittes, in suffering from this tragic eye malady, doesn’t know any better. My mother would say: “Pray for him.” But he needs to know this: people and their states have and will continue to ignore or nullify unconstitutional federal laws. For one thing, there are too many bad regulations and laws for everyone to passively sit by and hope that those laws and regulations go to the Supremes for their Godlike opinions. (The Supremes do not hear that many cases each year, and have not overturned one bad commerce clause case in over 60 years, for example.) Also, the Supremes come from the same law schools that turn out Constitution-phobe members of Congress, so good luck with those chances.

Thomas Jefferson, who drafted the Kentucky Resolutions of 1798, brought the term “nullification” into political thought and action. In the Resolutions he says that a federal “law” that violates the Constitution is no law at all. It is “void and of no effect.”

In 1811, the Pennsylvania legislature mirrored Jefferson’s sentiments by stating:

The act of union thus entered into being to all intents and purposes in treaty between sovereign states, the general government by their treaty was not constituted the exclusive or final judge of the powers it was to exercise, for if it were to so judge, then its judgment and not the Constitution would be the measure of its authority.

Become a member and support the TAC!

So no, it’s not just some kooky idea that the Virginia legislature just whipped up – it comes from Jefferson himself. Then again, maybe Wittes thinks the Declaration of Independence was a bit kooky too.

There is hope for Mr. Wittes and his condition, though. It is a vision clinic, of sorts, specifically set up to cure ailments such as Wittes’. It goes by the name of the Tenth Amendment Center. You can check in any time. The fees are voluntary. And if your heart is right while in there, you will be assured of a cure.

But in the meantime, since Mr. Wittes will likely not ever seek help for his affliction, Americans need protection from “scholars” such as he, as well as politicians. The best protection they can get is provided by the Constitution and the knowledge and wisdom that they can glean from its contents and its writers. Then they take action.

David Welsh
Latest posts by David Welsh (see all)

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.