State Nullification: What Is It?

State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws.

Says Thomas Jefferson, among other distinguished Americans. His draft of the Kentucky Resolutions of 1798 first introduced the word “nullification” into American political life, and follow-up resolutions in 1799 employed Jefferson’s formulation that “nullification…is the rightful remedy” when the federal government reaches beyond its constitutional powers. In the Virginia Resolutions of 1798, James Madison said the states were “duty bound to resist” when the federal government violated the Constitution.

But Jefferson didn’t invent the idea. Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Patrick Henry and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

1) The states preceded the Union. The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of individual states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power. No other arrangement makes sense. No one asks his agent whether the agent has or should have such-and-such power. In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created. James Madison explains this clearly in the famous Virginia Report of 1800.

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.

Two dozen American states nullified the REAL ID Act of 2005. More than a dozen states have successfully defied the federal government over medical marijuana. Nullification initiatives of all kinds, involving the recent health care legislation, cap and trade, and the Second Amendment are popping up everywhere.

What’s more, we’ve tried everything else. Nothing seems able to stop Leviathan’s relentless march. We need to have recourse to every mechanism of defense Thomas Jefferson bequeathed to us, not just the ones that won’t offend Katie Couric or MSNBC.

Thomas Jefferson knew about the Supremacy Clause, it’s safe to assume. The Supremacy Clause applies to constitutional laws, not unconstitutional ones. For a full reply to this objection, see Professor Brion McClanahan.

Nullification was never used on behalf of slavery. As I show in Nullification, it was used against slavery, which is why South Carolina’s secession document cites it as a grievance justifying southern secession, and Jefferson Davis denounced it in his farewell address to the Senate. Thus Wisconsin’s Supreme Court, backed up by the state legislature, declared the Fugitive Slave Act of 1850 unconstitutional (the mere existence of the fugitive-slave clause in the Constitution did not, in its view, suffice to make all the odious provisions of that act constitutionally legitimate). In Ableman v. Booth (1859), the Supreme Court scolded it for doing so. In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act. Who’s defending slavery here?

This may be the most foolish, ill-informed argument against nullification of all. It is the reply we often hear from law school graduates and professors, who are taught only the nationalist version of American history and constitutionalism. It is yet another reason, as a colleague of mine says, never to confuse legal training with an education.

Thus we read in a recent AP article, “The efforts are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause. Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

Hamilton himself explained at New York’s ratifying convention that while on the one hand “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” at the same time “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” In Federalist 33, Hamilton noted that the clause “expressly confines this supremacy to laws made pursuant to the Constitution.”

At North Carolina’s ratifying convention, James Iredell told the delegates that when “Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In December 1787 Roger Sherman observed that an “excellency of the constitution” was that “when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”

“Nullification is unconstitutional; it nowhere appears in the Constitution.”

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist. The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people. Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument. Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union. The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

The obscure obiter dicta of Cooper v. Aaron (1958) is sometimes raised against nullification. Here the Supreme Court expressly declared its statements to have exactly the same status as the text of the Constitution itself. But no matter what absurd claims the Court makes for itself, Madison’s point above holds – the very structure of the system, and the very nature of the federal Union, logically require that the principals to the compact possess a power to examine the constitutionality of federal laws. Given that the whole argument involves who must decide such questions in the last resort, citing the Supreme Court against it begs the whole question – indeed, it should make us wonder if those who answer this way even understand the question.

“Nullification was the legal doctrine by which the Southern states defended slavery.”

This statement is as wrong as wrong can be. Nullification was never used on behalf of slavery. Why would it have been? What anti-slavery laws were there that the South would have needed to nullify?

To the contrary, nullification was used against slavery, as when northern states did everything in their power to obstruct the enforcement of the fugitive-slave laws, with the Supreme Court of Wisconsin going so far as to declare the Fugitive Slave Act of 1850 unconstitutional and void. In Ableman v. Booth (1859), the U.S. Supreme Court scolded it for doing so. In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act. Who’s defending slavery here?

True, though Jackson was presumably not infallible. (Had nullification really been all about slavery, then Jackson, a slaveholder himself, should have supported it.) His proclamation concerning nullification was in fact written by his secretary of state, Edward Livingston, and that proclamation was, in turn, dismantled mercilessly – mercilessly – by Littleton Waller Tazewell.

I confess I have never understood what this Orwellian agitprop term is supposed to mean, but it is surely out of place here. Jefferson Davis, president of the Confederacy, denounced nullification in his farewell address to the U.S. Senate. South Carolina, in the document proclaiming its secession from the Union in December 1860, cited the North’s nullification of the fugitive-slave laws as one of the grievances justifying its decision.

One of the points of my book Nullification, in fact, is to demonstrate that the Principles of 1798 were not some obscure southern doctrine, but at one time or another were embraced by all sections of the country. In 1820, the Ohio legislature even passed a resolution proclaiming that the Principles of ’98 had been accepted by a majority of the American people. I do not believe there were any slaves in Ohio in 1820, or that Ohio was ever part of the Confederacy.

More sophisticated opponents think they have a trump card in James Madison’s statements in 1830 to the effect that he never intended, in the Virginia Resolutions or at any other time, to suggest that a state could resist the enforcement of an unconstitutional law. Anyone who holds that he did indeed call for such a thing has merely misunderstood him. He was saying only that the states had the right to get together to protest unconstitutional laws.

This claim falls flat. In 1830 Madison did indeed say such a thing, and pretended he had never meant what everyone at the time had taken him to mean. Madison’s claim was greeted with skepticism. People rightly demanded to know: if that was all you meant, why even bother drafting such an inane and feckless resolution in the first place? Why go to the trouble of passing solemn resolutions urging that the states had a right that absolutely no one denied? And for heaven’s sake, when numerous states disputed your position, why in the Report of 1800 did you not only not clarify yourself, but you actually persisted in the very view you now deny and which everyone attributed to you at the time? Madison biographer Kevin Gutzman (see James Madison and the Making of America, St. Martin’s, 2012) dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic 15 (1995): 569-89. Judge Abel Upshur likewise made quick work of this view in An Exposition of the Virginia Resolutions of 1798, excerpted in my book.

The elder Madison, in his zeal to separate nullification from Jefferson’s legacy, tried denying that Jefferson had included the dreaded word in his draft of the Kentucky Resolutions. Madison had seen the draft himself, so he either knew this statement was false or was suffering from the effects of advanced age. When a copy of the original Kentucky Resolutions in Jefferson’s own handwriting turned up, complete with the word “nullification,” Madison was forced to retreat.

In summary, then, (1) the other state legislatures understood Madison in 1798 as saying precisely what Madison later tried to deny he had said; (2) Madison did not correct this alleged misunderstanding when he had the chance to in the Report of 1800 or at any other time during those years; and (3) the text of the Virginia Resolutions clearly indicates that each state was “duty bound” to maintain its constitutional liberties within its “respective” territory, and hence Madison did indeed contemplate action by a single state (rather than by all the states jointly), as supporters and opponents alike took him to be saying at the time.

So we are instructed by the scholars who populate the Democratic Party of Idaho. Was it “shameful” for Jefferson and Madison to have employed the threat of nullification against the Alien and Sedition Acts of 1798? Was it “shameful” of the northern states to have employed the Principles of 1798 against the unconstitutional searches and seizures by which the federal embargo of 1807-1809 was enforced? Was it “shameful” for Daniel Webster, as well as the legislature of Connecticut, to have urged the states to protect their citizens from overreaching federal authority should Washington attempt military conscription during the War of 1812? Was it “shameful” for the northern states to do everything in their power to obstruct the enforcement of the fugitive-slave laws (whose odious provisions they did not believe were automatically justified merely on account of the fugitive-slave clause)? Was it “shameful” when the Supreme Court of Wisconsin declared the Fugitive Slave Act of 1850 unconstitutional and void, citing the Kentucky Resolutions of 1798 and 1799 in the process?

May I take a wild guess that no Democrat in the Idaho legislature knows any of this history?

The “shameful history” remark is surely a reference to southern resistance to the civil rights movement, in which the language of nullification was indeed employed. The implication is that Jeffersonian decentralism is forever discredited because states have behaved in ways most Americans find grotesque. They are states, after all, so we should not be shocked when their behavior offends us. But this is apples and oranges. This outcome was possible only at a time when blacks had difficulty exercising voting rights, a situation that no longer obtains. Things have changed since Birmingham 1963 in other ways as well. The demographic trends of the past three decades make that clear enough, as blacks have moved in substantial numbers to the South, the only section of the country where a majority of blacks polled say they are treated fairly. It is an injustice to the people of the South, as well as an exercise in emotional hypochondria, to believe the states are on the verge of restoring segregation if only given the chance. I mean, really.

By exactly the same reasoning, incidentally, any crime by any national government anywhere would immediately justify a world government. Anyone living under that world government who then favored decentralization would be solemnly lectured about all the awful things that had happened under decentralism in the past.

Supporters of nullification do not hold that the federal government is bad but the state governments are infallible. The state governments are rotten, too (which is why we may as well put them to some good use by employing them on behalf of resistance to the federal government). We are asking under what conditions liberty is more likely to flourish: with a multiplicity of competing jurisdictions, or one giant jurisdiction? There is a strong argument to be made that it was precisely the decentralization of power in Europe that made possible the development of liberty there.

This objection – why, an institutional structure was once put to objectionable purposes, so it may never be appealed to again – never seems to be directed against centralized government itself, particularly the megastates of the nationalistic twentieth century. I rather doubt nullification critics would turn this argument against themselves – by saying, for instance, “Centralized governments gave us hundreds of millions of deaths, thanks to total war, genocide, and totalitarian revolutions. In the U.S. we can point to the incarceration of hundreds of thousands of Japanese and a horrendously murderous military-industrial-congressional complex, among other enormities. Our federal government is so remote from the people that it has managed to rack up debts (including unfunded liabilities) well in excess of $100 trillion. In light of this record, what intellectual and moral pygmy would urge nationalism or the centralized modern state as the solution to our problems?”

In fact, anyone who argues that centralized states have been wonderful, progressive institutions when it comes to the minorities within their borders might consult the Armenians in Turkey, the Ukrainians in the Soviet Union, the Jews in Germany, the Asians in Uganda, or a whole host of other peoples who might have rather a different opinion.

It is far more likely that states will be too timid to employ nullification. But the more significant point is this: if the various states should have different policies, so what? That is precisely what the United States was supposed to look like. As usual, alleged supporters of “diversity” are the ones who most insist on national uniformity. It says quite a bit about what people are learning in school that they are terrified at the prospect that their country might actually be organized the way Americans were originally assured it would be. Local self-government was what the American Revolution was fought over, yet we’re told this very principle, and the defense mechanisms necessary to preserve it, are unthinkable.

Part of the reason the idea of nullification elicits such a visceral response from establishment opinion is that most people have unthinkingly absorbed the logic of the modern state, whereby a single, irresistible authority issuing infallible commands is the only way society can be organized. Most people do not subject their unstated assumptions to close scrutiny, particularly since the more deeply embedded the assumption, the less people are aware it exists.

And it is this modern assumption, dating back to Thomas Hobbes, that – whether people realize it or not – lies at the root of nearly everyone’s political thought. Not only is this assumption false, but (as I discuss in the book) the modern state to which it gave rise has been the most irresponsible and even lethal institution in history, racking up debts and carrying out atrocities that the decentralized polities that preceded them could scarcely have imagined. Why it should be given the moral benefit of the doubt, to the point that all skeptics are to be viciously denounced, is unclear.

“The compact theory may apply to the first 13 states, but since all the other states were created by the federal government, we cannot describe these later states as building blocks of the Union in the same sense.”

The Idaho attorney general’s office tried making this argument against the Idaho health-care nullification bill. Superficially plausible, the argument amounts to a gross misunderstanding of the American system. Were the Idaho attorney general correct, American states would not be states at all but provinces.

The argument of the Idaho attorney general’s office, in fact, amounts to precisely the Old World view of the nature of the state and the people that Americans fled Europe to escape. The American position has always been that an American state is created by the people, not the federal government. Jefferson himself amplified this point in the controversy over the admission of Missouri. The people of Missouri had drafted a constitution and were applying for admission to the Union. Were they not admitted, Jefferson told them, they would be an independent state. In other words, their statehood derived from their sovereign people and its drafting of a constitution, not the approval of the federal government.

The Civil War was not fought over nullification, and as I’ve said above, at the time of the war it was the northern states that had much more recently been engaged in nullification. The legitimacy of nullification involves a philosophical argument, and philosophical arguments are not – at least to reasonable people – decided one way or the other by violence. No one would say, when confronted with the plight of the Plains Indians, “Didn’t the U.S. Army settle that?” If the arguments for nullification make sense, and they do, that is what matters. Reality is what it is. The compact theory, from which nullification is derived, does describe U.S. history. There is no way to evade that brute fact.

My primary intention in writing Nullification was to rescuscitate portions of American history which, having proven inconvenient to the regime in Washington, had slipped down the Orwellian memory hole. I wanted Americans to realize that illustrious figures from their country’s past posed questions about the most desirable form of political organization – questions that today one is written out of polite society for asking.

I wanted to make a case, backed by overwhelming historical evidence, that the inhumane system whereby a single city hands down infallible dictates to 309 million people is not a fated existence. Jefferson and others proposed an alternative, one we might wish to revisit in light of how obviously dysfunctional the present system has become. Before this information can be put to much immediate use there is a good deal of educational groundwork to be laid. I intended the book to be a first step along the road back to sanity.

Old-style, “small-is-beautiful” progressives would have sympathized with this view, as New Left historian William Appleman Williams did. The commissars of approved opinion who pass as “progressives” today cannot even take the trouble to understand it.

Afterword: The problem with Jefferson’s position is not that it was too “extreme,” but that if anything it was too timid. Should you want something more challenging still, read Lysander Spooner.

Mr. Woods mentions de facto state nullificaton of the Big Brother REAL ID Act. About 25 states have refused to adhere to that federal mandate.

States have nullified federal gun laws: “analysis shows 14 such bills were passed by legislators in 11 states, mainly in Western states, along with Kansas, Tennessee and Alaska. Of those, 11 were signed into law, though one was later struck down in court. In Montana, Missouri and Oklahoma, three others were vetoed.

Discontent with Washington, US states look to nullify federal laws
02/10/2015
Reuters/Mark Leffingwell

State legislatures in the US are considering more than 200 bills – from gun rights to marijuana accessibility – that would nullify or work around various federal laws and regulations crafted in Washington, according to a states’ rights advocacy group.

The Tenth Amendment Center told The Hill the 200-plus pieces of current legislation seeking to challenge or wrest control from the federal government mark a climate of both suspicion and empowerment. The center tracks and supports states’ rights initiatives across the country.

“People are becoming more and more concerned about the overreach of the federal government,” said the group’s spokesman, Mike Maharrey. “They feel the federal government is trying to do too much, it’s too big and it’s getting more and more in debt.”

While federal law ultimately supersedes state law – if enforcement power is exercised – the Tenth Amendment, part of the Bill of Rights, says that the federal government is limited to powers granted in the US Constitution.

For instance, a bill that would “block any future federal bans on firearms or magazines” passed the Montana state House on Monday. Montana’s bill is one of eleven nationwide, according to the center, that aim to counter federal gun control measures.

Twelve states are seeking to challenge federal surveillance authority vested in the likes of the National Security Agency, revealed in June 2013 to be operating a global spying regime to advance American domestic and foreign policy goals.

In another 12 states, bills have been introduced to legalize some form of marijuana, whether it be medical, recreational, or both.

Both the New Jersey state Assembly and Senate have passed a measure to halt the state’s participation in the Pentagon’s 1033 program, which supplies surplus military weaponry to local law enforcement agencies. Gov. Chris Christie has yet to sign the bill into law.

The 1033 program and police militarization overall have received heightened scrutiny – especially after the civil unrest in Ferguson, Mo. last year, when, after a fatal police shooting of an unarmed teenager, the angered community was besieged by local police driving armored vehicles and tossing tear gas into protesting crowds.

As RT has reported, New Hampshire is one of five other states seeking laws to curb its participation in federal combat-gear programs.

Seven states have introduced measures that would mean opting out of the federal government’s purported authority to indefinitely detain a person within the US, a power that was granted under the 2012 National Defense Authorization Act (NDAA) and the 2001 Authorization to Use Military Force. The NDAA provision was signed by President Barack Obama in early 2012 amid the Occupy movement in the US.

Three states – California, Michigan, and Virginia – have passed some form of an anti-indefinite detention law.

In recent years, the Affordable Care Act, or Obamacare, has been the favorite federal law that states have tried to redress.

According to the National Conference of State Legislatures, 21 states have passed laws and measures that challenge or attempt to opt out of the health reform law. Since the law’s passage in 2010, at least 47 of 50 state legislatures have considered bills to “limit, alter, or oppose selected state or federal actions” related to the federal health law’s passage, according to the NCSL.

More on REAL ID and another onslaught in 2016 by the federal police state. It should be noted the REAL ID Act and the Patriot Act were both signed into law by Mr. Bush Jr. The irony is that if Bush Jr. had been a Democrat, Republicans in Congress would have resisted these unconstitutional acts and not rubber stamped them.

The ability to travel in the United States is about to become more restrictive as the TSA announces it will soon be enforcing new identification standards in American airports.

Beginning in 2016, passengers attempting to pass through a federal TSA checkpoint will be subject to the requirements of the REAL ID Act. To that end, the TSA will put higher scrutiny on travelers’ identities, and will only accept a federal passport or a “REAL-ID” card, which is issued by the states to meet federal requirements. Passengers will not be allowed to fly through an American airport without submitting to the advanced federal specifications.

Both federal passports and REAL-ID cards require a number of unique personal identifiers to be stored together in government databases, including his or her full name, date of birth, Social Security Number, scanned signature, and other identifiers. Both cards require biometric data: a front-facing digital photograph of the passenger’s face, which is ultimately used with a facial recognition database.

“It is a choice,” flippantly explained David Fierro, the Public Information Officer for the Nevada Department of Motor Vehicles. “If you use a passport when you’re traveling you don’t have any problems. If you use your driver’s license as identification, you’ll need to either apply for the Real ID card or get a passport.”

ORIGIN OF ‘REAL ID’

The enhanced security measures stem from the passage of the REAL ID Act of 2005, a U.S. law enacted by President Bush that states that a Federal agency may not accept state-issued identification cards without complying with a number of enhanced standards of the REAL ID Act.

The states were given a number of years to comply, and many moved to pass their own laws to meet the benchmarks of the REAL ID Act. Due to some sluggish response, DHS extended the compliance deadline several times.

Unfortunately, most states were all too willing to bend to the requirements of the federal government in order to obtain “state certifications” of compliance. To signify their compliance with the federal standards, many states are now issuing identity cards emblazoned with gold stars in the corner.

According to the Department of Homeland Security, only Arizona, Idaho, Louisiana, Maine, Minnesota, New Hampshire, New York, and American Samoa have not met REAL ID standards as of January 2015. By DHS estimates, 70%-80% of all U.S. drivers are already carrying around REAL ID cards or live in states that have received extensions for compliance.

Some states have even gone as far as to require the applicant to present birth certificates, W-2 tax forms, bank statements, and/or pay stubs to verify one’s identity before handing out the new REAL-ID cards. Some cards have RFID chips embedded in them.

Among the 39 benchmarks of the REAL ID Act, state ID cards have to be scannable with a bar code reader, and the states are required to share access to an electronic database with all other states.

Once DHS begins enforcing the REAL ID standards, Americans without a compliant state ID will be effectively prohibited from flying at a commercial airport. Passengers would need to obtain passports even to fly on planes that never leave the United States.

THE ILLUSION OF SECURITY

The REAL ID Act was ostensibly sold as a security enhancement to protect the country against terrorism and illegal immigration. It received overwhelming support from both Republicans and Democrats, passing 388-43 in the House and 99-1 in the Senate.

However, a few rose in opposition to REAL ID, including Congressman Ron Paul (R-TX), who was perhaps its most outspoken critic. Dr. Paul, a former presidential candidate, called REAL ID a “Trojan horse” which “transform[s] state drivers licenses into de facto national ID cards.” In an impassioned speech on the House floor on February 9, 2005, Paul laid out a number of specific objections to H.R. 418:

The REAL ID Act establishes a national ID card by mandating that states include certain minimum identification standards on driver’s licenses. It contains no limits on the government’s power to impose additional standards. Indeed, it gives authority to the Secretary of Homeland Security to unilaterally add requirements as he sees fit.
Former U.S. Congressman Ron Paul of Texas. (AP Photo / Mary Ann Chastain)

Former U.S. Congressman Ron Paul of Texas. (AP Photo / Mary Ann Chastain)

Supporters claim it is not a national ID because it is voluntary. However, any state that opts out will automatically make non-persons out of its citizens. The citizens of that state will be unable to have any dealings with the federal government because their ID will not be accepted. They will not be able to fly or to take a train. In essence, in the eyes of the federal government they will cease to exist. It is absurd to call this voluntary.

Republican Party talking points on this bill, which claim that this is not a national ID card, nevertheless endorse the idea that “the federal government should set standards for the issuance of birth certificates and sources of identification such as driver’s licenses.” So they admit that they want a national ID but at the same time pretend that this is not a national ID.

This bill establishes a massive, centrally-coordinated database of highly personal information about American citizens: at a minimum their name, date of birth, place of residence, Social Security number, and physical and possibly other characteristics. What is even more disturbing is that, by mandating that states participate in the “Drivers License Agreement,” this bill creates a massive database of sensitive information on American citizens that will be shared with Canada and Mexico!

This bill could have a chilling effect on the exercise of our constitutionally guaranteed rights. It re-defines “terrorism” in broad new terms that could well include members of firearms rights and anti-abortion groups, or other such groups as determined by whoever is in power at the time. There are no prohibitions against including such information in the database as information about a person’s exercise of First Amendment rights or about a person’s appearance on a registry of firearms owners.

REAL ID cards streamline the process for the centralization and federalization of our private biometric data, while offering very little true benefit. In the words of Congressman Ron Paul, the program “offers us a false sense of greater security at the cost of taking a gigantic step toward making America a police state.”

Its difficult to argue otherwise when passports may soon be necessary to travel domestically.

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