Can States or Citizens ‘Nullify’ Federal Cannabis Prohibition?

For much of the twentieth century, “nullification” was something of a dirty word in American politics because of its association with the defenses of slavery and Jim Crow. However, it has also been raised in support of basic human freedoms.

In short, nullification is the idea that a state has the right to invalidate, or nullify, any federal law that the state considers to be unconstitutional. Today, some activists are arguing that states and people can declare federal cannabis prohibition nullified within their borders — though it might not be that simple.

Nullification’s Contested Legacy

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 opposition to his Federalist party. There was also a big element of xenophobia at work in the Alien & Sedition Acts — especially aimed at the revolutionary French, who the Federalist Party despised. In clear echoes of contemporary controversies, the Alien & Sedition 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. On the other hand, 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.”

However, things began to go south (pun intended) for “nullification” long after the Alien & Sedition Acts were overturned. By the Antebellum period, the nullification 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 the 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 continued to invoke “nullification.” The doctrine would take on a new currency in the Civil Rights era, in efforts to override federal prohibition of Jim Crow. In 1963, Martin Luther King Jr. himself would denounce nullification as a tool of “vicious racists” in his “I Have A Dream” speech.

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 history than its later appropriation by institutional racism.

Boldin cites the Federalist Paper No. 46, in which future president James 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,” said Boldin. “What we’re seeing now is practical, de facto nullification. We don’t care what you call it. Our goal is to see an end to an unconstitutional ban in a plant.”

In 2017, the Tenth Amendment Center released a report called the “State of the Nullification Movement,” which 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.

For example, the Fugitive Slave Act of 1850 famously made it a federal crime to assist a runaway slave. 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 improvisation even in the efforts of Jefferson and Madison. “The Kentucky Resolution stated that when federal government oversteps its authority, ‘nullification is the rightful remedy’ — but it didn’t define what that meant.”

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 “undermining 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 nullification” is already well underway. “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 bill passes and Gov. Brown signs it, the feds are going to have an almost impossible 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.”

Finally, Boldin noted: “Even if people don’t realize exactly what they’re doing, they’re following James Madison’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, D.C., and we’re seeing that play out in front of our eyes.”

TELL US, do you think states should nullify federal cannabis prohibition?