Thomas Jefferson said a revolution every 20 years would be a good thing. Regardless of what one thinks of that, perhaps a little constitutional crisis every now and then would have its benefits.
One such crisis may be brewing now. On election day solid majorities of voters in Colorado and Washington voted to make marijuana a legal product not just for people who are certified as ill, but for everyone. Several states already allow marijuana use for medical purposes. But these two states are blazing trails by recognizing the freedom of all adults to smoke or otherwise consume the plant. (I will refrain from calling it a drug, a term used purely for propagandistic purposes. Moreover, we say we “drink coffee and beer,” not “use caffeine and alcohol.”)
The problem of course is that the federal government forbids the manufacture, sale, and use of marijuana (and many other substances) for any reason. The first question that might occur to a thinking person is: by what authority? After all, the American theory of constitutional republicanism holds that the central government’s powers are limited to those enumerated in the Constitution. (This is not the place to examine that theory.) What power in the Constitution authorizes the central government to forbid marijuana? The question is further bolstered by the fact that when opponents of alcoholic beverages sought prohibition of their manufacture and distribution, they pushed for and won an amendment to the Constitution — implying that without the amendment, Congress had no legal power to regulate or ban alcohol.
Regulation of marijuana began as a tax with the Marijuana Tax Act of 1937, signed by Franklin Roosevelt. The first man caught selling marijuana without having paid the tax was sentenced to four years in the federal Leavenworth Penitentiary. Some three decades later the Act was declared unconstitutional because of Fifth Amendment problems, and Congress promptly replaced it with the Controlled Substances Act in 1970. The earlier Harrison Narcotics Tax Act of 1914, which began as a record-keeping requirement for physicians who prescribed opiates and cocaine, “quickly became a prohibition statute,” as Thomas Szasz put it in Our Right to Drugs. The Supreme Court seemed unsure of its constitutionality but upheld it anyway because of its revenue-raising objective. (The power to tax is the power.) A few years later, the Court lost all doubts:
There can be no question of the authority of the State in the exercise of its police power to regulate the administration, sale, prescription, and use of dangerous and habit-forming drugs…. The right to exercise this power is so manifest in the interest of public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question. [Emphasis added.]
So much for government’s having to justify newly exercised powers. As Szasz summed up,
In 1914, trading in and using drugs was a right. In 1915, limited federal drug controls were a constitutionally questionable tax revenue measure. By 1921, the federal government had gained not only complete control over so-called dangerous drugs, but also a quasi-papal immunity to legal challenge of its authority. Thus has the rejection of one of our most basic constitutional rights become transformed into reverence for one of our most baneful therapeutic-religious dogmas. [Emphasis in original.]
Be that as it may, the people of two states now say they can manufacture, sell, and use marijuana no matter what the feds think. What happens now? We already have some idea: 20 states and the District of Columbia permit (or refuse to penalize) medical marijuana in defiance of federal law. Despite early assurances to the contrary, the Obama administration has cracked down on legal state-licensed marijuana dispensaries in California to a far greater degree than the Bush administration did. During the Bush years, federal anti-marijuana policy was challenged by Californians, but the Supreme Court in Gonzales v. Raich (2005) sided with the central government, ruling that the Constitution’s Commerce Clause empowers the feds to prohibit marijuana manufacturing and consumption even when a state law permits it for medical purposes. (The Bush administration argued that it could not effectively prohibit commerce in marijuana nationally if people in the states were free to grow and sell it.)
Is the Obama administration likely to stand by and permit the recreational use of pot in Washington and Colorado, when it tries to stop its medical use in California? It hardly seems likely. But does it want to ignite open resistance by cracking down? That puts the feds in a bind.
Asked by NBC News what the future holds, Kevin Sabet, a former Obama administration drug-policy adviser, said, “Once these states actually try to implement these laws, we will see an effort by the feds to shut it down. We can only guess now what exactly that would look like. But the recent U.S. attorney actions against medical marijuana portends an aggressive effort to stop state-sponsored growing and selling at the outset.”
So it looks as though a conflict is in the offing, maybe even a constitutional crisis. With marijuana generally legal in two states, there would seem to be no authority for those state governments to devote resources helping the feds enforce federal law. (The feds don’t typically go after users; that’s left to state authorities.) And what of the Constitution’s Supremacy Clause? It says, “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land….”
That would seem to seal the deal for the feds. But maybe not. What if a law is not “made in pursuance” of the Constitution, at least in the judgment of people in the states? Do they have the authority to ignore the law? Thomas E. Woods Jr. takes up this question in his book Nullification: How to Resist Federal Tyranny in the 21st Century. Pointing out that other efforts to reverse the growth of the central government have failed, Woods writes that “more and more Americans … are beginning to wonder if some other strategy should be pursued.” He has a point. The principle of checks and balances among the three branches of the central government has done little to stem its growth. The Supreme Court and Congress almost always defer to the imperial presidency. It’s an exception when the Court puts a limit on Congress. Electoral politics hasn’t had much effect. What’s left?
Fortunately, there is another strategy worth trying in the 21st century: in Woods’s words, “the Jeffersonian remedy of state interposition or nullification.”
As Woods notes, nullification proceeds from the premise that an unconstitutional law is not properly regarded as law and therefore the states may ignore it. “Nullification provides a shield between the people of a state and an unconstitutional law from the federal goverment,” he writes. Without nullification, the feds define their own powers, which is intolerable from the standpoint of liberty because a government that defines its own powers is an unlimited government.
Nullification, as already noted, has a high pedigree. “It was Thomas Jefferson, in his draft of the Kentucky Resolutions of 1798, who introduced the term ‘nullification’ into American political discourse,” Woods writes. “Jefferson was merely building upon an existing line of political thought dating back to Virginia’s ratifying convention and even into the colonial period. Consequently, an idea that may strike us as radical today was well within the mainstream of Virginian political thought when Jefferson introduced it.”
Nullifying the central government’s destructive and misnamed war on drugs — it’s really a war on people — would be appropriate because in the past Americans used the principle against other laws that violated personal liberty, such as the Alien and Sedition Acts, which among other things suppressed criticism of government officials, and the Fugitive Slave Act, which required the return of runaway slaves to their masters. (Several states passed “personal liberty laws” in response. While that was not formal nullification, it was similar to it. Pro-slavery southerners objected. So much for southern devotion to “States’ Rights.”)
While nullification has not been acknowledged as valid by the feds, we shouldn’t assume it’s a dead letter. Woods notes that resistance in the states can force the feds to back off even if they don’t repeal the offensive law. Such is the case with the REAL ID Act of 2005, which would have standardized the identification process. Woods’s book discusses other modern examples of de facto nullification.
Nullification should not be conflated with the principle of States’ Rights. Nullification is about the real rights of individual persons, not the alleged rights of state governments. History demonstrates that decentralized power tends to pose less of a threat to freedom if for no other reason than that the smaller the jurisdiction, the cheaper it is to vote with one’s feet. What possible objection can there be to letting the people of the states decide when to ignore federal laws that violate their liberty?
And what better place to start than with the feds’ war on people who make, sell, and use disapproved substances? The drug war builds up intrusive police power, enriches black-market gangs, stimulates violence, ruins inner cities, jails millions of nonviolent people, and generally violates Americans’ civil liberties. It is an abomination in a society that regards itself as free.
Keep an eye on Washington and Colorado. They may be the birthplaces of freedom in the 21st century.
This article originally appeared in the February 2013 edition of Future of Freedom.