Can states—or the people— 'nullify' federal cannabis prohibition?

Posted on June 19th, 2018 by Bill Weinberg and tagged , , , , , , .

constitutionThe doctrine of nullification has a long and harshly contested legacy in the history of the United States—it has been invoked in defense of both just causes and frankly evil ones. But some argue that it is time to revisit the idea—to put an end to federal cannabis prohibition.

Nullification became something of a dirty word in American politics because of its association with defenses of slavery and Jim Crow. But it has also been raised in support of basic human freedoms.

Nullification's contested legacy
Martin Luther King denounced nullification as a tool of "vicious racists" in his "I Have A Dream" speech. But the first explicit invocation of nullification was in the Virginia and Kentucky Resolutions of 1798, drafted by James Madison and Thomas Jefferson, respectively. These resolutions were a rejection of truly draconian federal laws on "state sovereignty" grounds.

The laws in question in 1798 were the Alien & Sedition Acts, signed by President John Adams to clamp down on the populist Democratic-Republican opposition to his Federalist party. (With a few twists and turns along the way, the Democratic-Republicans and Federalists would evolve into today's Democrats and Republicans.)

There was also a big element of xenophobia at work in the Alien & Sedition Acts—especially aimed at the revolutionary French, hated by the Federalists. In clear echoes of contemporary controversies, the Acts raised barriers to immigrant citizenship, authorized the president to imprison or deport aliens considered "dangerous to the peace and safety of the United States," and restricted speech critical of the government. Democratic-Republican leaders Jefferson and Madison argued that states had the power to "nullify" oppressive federal laws.

"[W]here powers are assumed which have not been delegated," Jefferson wrote in the Kentucky Resolution, "a nullification of the act is the rightful remedy."

Things began to go south (pun intended) for "nullification" long after the Alien & Sedition Acts were overturned, when the doctrine was resurrected as a defense of secession and slavery on "state sovereignty" grounds. In the 1832 Nullification Crisis, South Carolina asserted its right to nullify a federal tariff—but by then it was becoming clear that the slavery issue was leading the southern states into a confrontation with federal power.

South Carolina looked to its native son, Vice President John C. Calhoun, as defender of its nullification rights—who was also the most vociferous defender of slavery on the national scene. But President Andrew Jackson (no enemy of slavery!) rejected these arguments, and prevailed over South Carolina's effort to resist the tariff. Nonetheless, the same argument was taken up by Calhoun in the Senate to deny Congressional authority to bar slavery from the Western territories.

After the slavery question was finally decided in the Civil War, the most intransigent Southern segregationists invoked "nullification." The doctrine would take on a new currency in the Civil Rights era, in efforts to override federal prohibition of Jim Crow.

Nullification and the cannabis question
But Michael Boldin of the Los Angeles-based Tenth Amendment Center, a modest think-tank of libertarian leaning, believes the time is ripe to revive the nullification idea—this time to override federal prohibition of cannabis.

Speaking to Cannabis Now, Boldin traces the roots of the nullification concept much deeper into American hsitory than its later appropriation by institutional racism. "We go back to James Madison in the Federalist Papers, and even back to resistance to the Stamp Act," in the prelude to the American Revolution. Boldin cites the Federalist No. 46, in which Madison wrote of the people's "refusal to co-operate with the officers of the Union" as a check on any "unwarrantable" power-grab by the federal government.

"Madison outlined the steps that both states and individuals could take to undermine federal programs.  What we're seeing now is practical, de facto nullificaiton. We don't care what you call it.  Our goal is to see an end to an unconstitutional ban in a plant."

The Tenth Amendment Center's 2017 report on the  "State of the Nullification Movement" delineates the growing elbow room for cannabis at the state level from coast to coast in defiance of federal intransigence, as well as state measures to restrict asset forfeiture. And it cites historical examples of nullification similarly being raised in defense of good causes—including opposition to slavery. The Fugitive Slave Act of 1850 famously made it a federal crime to assist a runaway slave—a crackdown on the Underground Railroad. The abolitionist William Lloyd Garrison spoke out in defense of Northern politicians who called for the Act's "nullification."

Boldin emphasizes that there was a sense of improvision even in the efforts of Jefferson and Madison. "The Kentucky Resolution stated that when federal government oversteps its authority, 'nullifaction is the rightful remedy'—but it didnt define what that meant." He cites a 1798 letter from Madison to Jefferson which states: "[W]e may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent."

And Boldin makes clear he rejects Calhoun's take on nullification. He explains: "Calhoun made up his own idea that a single state could simply declare a federal act unconstitutional and the whole union would have to recognize that unless the states came together in a convention and three quarters voted to overturn the nullifying state's act." Boldin recalls that this so-called "Doctrine of South Carolina" was even explicitly rejected by an aging James Madison in his 1834 "Notes on Nullification." Madison wrote that Calhoun's doctrine was "underminig the Union," and that nullification should only be invoked to resist "intolerable oppression."    

Does cannabis prohibition fall into this category? Boldin clearly thinks so—and thinks that what he calls "de facto nullifcation" is already well under way. "A high percentage of cannabis prosecutions are at the state level," he tells Cannabis Now.  "If the people decide to defy the feds and the state law is backing them up, the federal law is null and void anyway."  

He points to the so-called Marijuana Sanctuary State bill, already passed in California's assembly. If it becomes law, it will ban the use of state or local resources to help enforce federal prohibition of cannabis use or cultivation that is in compliance with California's Adult Use of Marijuana Act. Says Boldin: "If that passes and Gov. Brown signs it, the feds are going to have an almost imopossble task ahead of them if they try to continue marijuana enforcement in California—because they rely so heavily on people in the state to help them."  

"Even if people don't realize exactly what they're doing, they're following James Madion's advice in Federalist 46, in their 'refusal to cooperate with officers of the Union.' That's the full circle for us. If enough states said no, it would be an almost impossible situation for Washington DC, and we're seeing that play out in front of our eyes."

Historical paradox 
Boldin acknowledges the obvious historical ironies. Following last year's passage of the California Values Act—infiormally, the Sanctuary State Act, which restricts state and local cooperation in the federal immigration crackdown—the proverbial shoe is on the other foot. "It is conservatives who are accusing California of illegal nullifcation by providiing driver's licenses to undocumented immigrants."

He also points to the California TRUST Act of 2014, which bars state compliance with federal "detainer requests" to check up on the immigration status of arrestees.  

As the arch-conservative Breitbart proudly reported, far-right mouthpiece John Bolton (now Trump's National Security Advisor) earlier this year accused California of "nullification"—and even invoked the name of John Calhoun! Bolton was speaking in defense of Attorney General Jeff Sessions' decsion to sue California over the Values Act.

Boldin is clearly optimistic. "There are 300 immigrant sanctuary cities across the country," he says. "So the scales are weighed significantly in the right direction. Something like 30 states are defying Washington on cannabis prohition in some form. To me, this is the beauty of the system. It doesn't always work the way it should, but when it does it's amazing."

Cross-post to Cannabis Now

Image via Foreign Policy Journal


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