Democrat States Use Nullification to End War on Marijuana
by Alex Newman
Voters in at least four states decided to nullify unconstitutional federal statutes and United Nations drug-control treaties by officially ending marijuana prohibition, a major victory for the U.S. Constitution and the 10th Amendment. Three states — California, Massachusetts, and Nevada — completely legalized marijuana, even for recreational use by adults. By press time, it appeared that Maine’s initiative to do the same was on its way to being successful. In Arizona, where conservative nullification efforts on other issues have been popular, voters narrowly decided to keep pot prohibition in place. Still, regardless of one’s views on cannabis, states’ rights scored a string of impressive successes this week.
In Florida, voters overwhelmingly amended the state Constitution to end prohibition of medical marijuana for patients suffering from certain ailments. Recreational pot possession remains illegal. Joining Florida were Arkansas and North Dakota, two reliably conservative states where voters also decided to nullify federal and UN schemes by ending the criminalization of the controversial plant when used under doctors’ orders. Montana voters decided to further liberalize that state’s medical marijuana laws. Over half of American states have now in practice nullified unconstitutional federal cannabis policy, which generally prohibits the plant even for medicinal purposes.
In the successful referenda on cannabis this week, the states’ decisions to buck the U.S. government and the UN all rely — whether knowingly or not — on a proper constitutional tool known as “nullification.” Essentially, nullification is a time-tested legal strategy to check unconstitutional federal statutes and policies at the state level. It was promoted by some of America’s most prominent Founders, such as Thomas Jefferson and James Madison, two of the men responsible for the nation’s founding documents.
The idea behind nullification is simple: Under the U.S. Constitution, the federal government was delegated a few defined powers by the states. Prohibiting substances was not among those powers, hence the need for a constitutional amendment to ban alcohol. Ratifying UN treaties, whether on drugs or anything else, does not grant new powers to the federal government, as even the Supreme Court has made clear. As such, states have an obligation to interpose on behalf of their citizens by rejecting unconstitutional power grabs. In the past, numerous states have relied on similar strategies, including Wisconsin, which refused to return run-away slaves under the Fugitive Slave Act.
Under the 10th Amendment to the U.S. Constitution, state governments and the people explicitly reserved all powers not specifically granted to the feds under the U.S. Constitution. Because drug policy is not constitutionally a federal power, states and the people retained all power in this field — unconstitutional federal statutes, regulations, and UN treaties notwithstanding. A constitutional amendment would be needed to legally change that. Regardless of one’s own feelings about marijuana, then, conservatives and constitutionalists concerned about federal lawlessness in other areas — everything from healthcare and environmental policy to gun control and abortion — should take a lesson.